PART 1THE OVERRIDING OBJECTIVE

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

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 3rd October, 2011, but unless the court otherwise directs they do not affect a right or duty existing under The Criminal Procedure Rules 2010(16).

[Note. The rules replaced by the first Criminal Procedure Rules (The Criminal Procedure Rules 2005(17)) were revoked when those Rules came into force by provisions of the Courts Act 2003, The Courts Act 2003 (Consequential Amendments) Order 2004(18) and The Courts Act 2003 (Commencement No. 6 and Savings) Order 2004(19). 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(20); 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.

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(21) that Act is called -�the 1996 Act'; and after a reference to The Criminal Procedure and Investigations Act 1996 (Defence Disclosure Time Limits) Regulations 1997(22) those Regulations are called -�the 1997 Regulations'.

The glossary

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

Representatives

2.5.-(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(23); or

(b)issue a written charge and requisition under section 29 of the Criminal Justice Act 2003(24).

[Note. See also section 122 of the Magistrates' Courts Act 1980(25). A party's legal representative must be entitled to act as such under section 13 of the Legal Services Act 2007(26).

Section 33(6) of the Criminal Justice Act 1925(27), section 46 of the Magistrates' Courts Act 1980(28) and Schedule 3 to that Act(29) provide for the representation of a corporation.

Part 7 contains rules about starting a prosecution.]

PART 3CASE MANAGEMENT

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 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(30), 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(31), 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(32), 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(33) and section 20(3) of the Criminal Procedure and Investigations Act 1996(34) (advance disclosure of expert evidence);

(b)section 11(5) of the Criminal Procedure and Investigations Act 1996(35) (faults in disclosure by accused);

(c)section 132(5) of the Criminal Justice Act 2003(36) (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

Rule 12.2: time for first appearance of accused sent for 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(37)

The Criminal Justice Act 1987 (Notice of Transfer) Regulations 1988(38)

The Criminal Justice Act 1991 (Notice of Transfer) Regulations 1992(39)

The Criminal Procedure and Investigations Act 1996 (Defence Disclosure Time Limits) Regulations 1997(40)

The Crime and Disorder Act 1998 (Service of Prosecution Evidence) Regulations 2005(41)

Provisions of Acts of Parliament

Sections 5, 10 and 18, Magistrates' Courts Act 1980(42): powers to adjourn hearings

Sections 128 and 129, Magistrates' Courts Act 1980(43): remand in custody by magistrates' courts

Part 1, Criminal Procedure and Investigations Act 1996(44): disclosure

Schedule 2, Criminal Procedure and Investigations Act 1996(45): use of witness statements at trial

Section 2, Administration of Justice (Miscellaneous Provisions) Act 1933(46): procedural conditions for trial in the Crown Court

Section 6, Magistrates' Courts Act 1980(47): committal for trial

Section 4, Criminal Justice Act 1987(48); section 53, Criminal Justice Act 1991(49); section 51 and (so far as it is in force) section 51A, Crime and Disorder Act 1998(50): other procedures by which a case reaches the Crown Court

Section 7, Criminal Justice Act 1987(51); Parts III and IV, Criminal Procedure and Investigations Act 1996: pre-trial and preparatory hearings in the Crown Court

Section 9, Criminal Justice Act 1967(52): proof by written witness statement.]

PART 4SERVICE OF DOCUMENTS

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, 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. Certain 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(53).]

Service by leaving or posting a document

4.4.-(1) A document may be served by 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(54) (service of summons, etc. in Scotland and Northern Ireland);

(b)section 1139(4) of the Companies Act 2006(55) (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(56) (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 through a document exchange

4.5. A document may be served by document exchange (DX) where-

(a)the person to be served-

(i)has given a 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.

Service by electronic means

4.6.-(1) A document may be served by electronic means where-

(a)the person to be served-

(i)has given an electronic address, and

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

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

(2) 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(57);

(c)a notice of registration under section 71(6) of that Act(58);

(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(59);

(e)notice under section 86 of that Act(60) of a revised date to attend a means inquiry;

(f)any notice or document served under Part 19 (Bail in magistrates' courts and the Crown Court);

(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 the addressee's DX or at a correspondent DX;

(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

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(61) 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(62).

Requirements to record the court's reasons for its decision are contained in: section 5 of the Bail Act 1976(63); section 47(1) of the Road Traffic Offenders Act 1988(64); sections 20, 33A and 33BB of the Youth Justice and Criminal Evidence Act 1999(65); section 174(2) of the Criminal Justice Act 2003(66); 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(67).

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(68) 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(69).]

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(70).]

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(71);

(c)section 18 of the Criminal Procedure and Investigations Act 1996(72);

(d)the Sexual Offences (Protected Material) Act 1997(73);

(e)the Data Protection Act 1998(74);

(f)section 20 of the Access to Justice Act 1999(75); 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(76), 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(77), 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(78).]

PART 6INVESTIGATION ORDERS

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(79),

(ii)an explanation order, under paragraphs 10 and 13 of Schedule 5 to the 2000 Act(80),

(iii)a customer information order, under paragraphs 1 and 4 of Schedule 6 to the 2000 Act(81);

(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(82).

(2) Sections 2 and 4 of this Part apply where, for the purposes of a confiscation investigation or a money laundering investigation, 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 Proceeds of Crime Act 2002(83);

(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(84);

(d)a customer information order, under sections 363 and 369 of the 2002 Act(85);

(e)an account monitoring order, under sections 370 and 375 of the 2002 Act(86).

(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(87);

(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.

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

(a)under the Terrorism Act 2000-

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

(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)under the Proceeds of Crime Act 2002-

(i)a production order, requiring a person to produce or give access to material sought in a confiscation or money laundering investigation,

(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.

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

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(88), a High Court judge, a Circuit judge, a Recorder and a District Judge (Magistrates' Courts) each may act as a Crown Court judge.

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 any person who can apply for an order to which this Part applies; and

(c)-�respondent' means a person against whom such an order is sought or made.

SECTION 2: GENERAL RULES

Exercise of court's powers

6.3.-(1) The court must determine an application for an order-

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

(b)in the applicant's presence.

(2) The court must not determine such an application in the absence of the respondent or any 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, or

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

(3) The court may determine an application 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,

(iii)any other person affected by the order.

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.

Custody of documents

6.5. 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.

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. Under rules 6.3 and 6.4, the court may-

(a)exercise its powers in a respondent's absence; and

(b)dispense with a requirement for service.

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(89).

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 the subject of the confiscation or money laundering 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. Under rules 6.3 and 6.4, the court may-

(a)exercise its powers in a respondent's absence; and

(b)dispense with a requirement for service.

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(90), and the code of practice for prosecutors and others issued under section 377A of that Act(91).]

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(92). 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.

The applicant for a production order must be an -�appropriate officer' as defined by section 378(1), (4) and (5) of the 2002 Act(93).]

Content of application for an order to grant entry

6.16. An applicant who wants the court to make an order to grant entry 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.

An order to grant entry may be made only in aid of a production order.]

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(94). 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.

Under section 357(2) of the 2002 Act, a disclosure order may not be made in relation to a money laundering investigation.

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(95). 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(96). 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(97); 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(98);

(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(99).]

PART 7STARTING A PROSECUTION IN A MAGISTRATES' COURT

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(100);

(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(101); 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(102) 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(103).]

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(104) and section 30(5) of the Criminal Justice Act 2003(105).

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(106) 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(107) allows, and in some cases requires, the court to summon the parent or guardian of a defendant under 18.]

PART 8DISCONTINUING A PROSECUTION

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(108);

(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(109).

(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(110), and under section 38 of the Serious Organised Crime and Police Act 2005(111), 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 8.4.

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(112), may discontinue proceedings where the defendant was sent for trial in the Crown Court under section 51 of the Crime and Disorder Act 1998(113). 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 9

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

PART 10COMMITTAL FOR TRIAL

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(114) (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(115) 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.

[Note. On the coming into force of Schedule 3 to the Criminal Justice Act 2003(116), committal for trial will be abolished and cases triable either way will be sent to the Crown Court under sections 51 and 51A of the Crime and Disorder Act 1998(117), in the same way as cases triable only on indictment.]

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(118).

(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.

[Note. On the coming into force of Schedule 3 to the Criminal Justice Act 2003, committal for trial will be abolished and cases triable either way will be sent to the Crown Court under sections 51 and 51A of the Crime and Disorder Act 1998, in the same way as cases triable only on indictment.]

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(119) 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(120), 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.

[Note. On the coming into force of Schedule 3 to the Criminal Justice Act 2003, committal for trial will be abolished and cases triable either way will be sent to the Crown Court under sections 51 and 51A of the Crime and Disorder Act 1998, in the same way as cases triable only on indictment.]

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(121), 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 days from the date of his committal (not counting Saturdays, Sundays, Good Friday, Christmas Day or Bank Holidays), the magistrates' court officer shall, subject to the provisions of section 7 of the Prosecution of Offences Act 1985(122) (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(123) 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(124);

(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(125) (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.

[Note. On the coming into force of Schedule 3 to the Criminal Justice Act 2003, committal for trial will be abolished and cases triable either way will be sent to the Crown Court under sections 51 and 51A of the Crime and Disorder Act 1998, in the same way as cases triable only on indictment.]

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

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(126) or section 53(1) of the Criminal Justice Act 1991(127).

(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(128)); 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(129), those provisions will be replaced with sections 51B and 51C of the Crime and Disorder Act 1998(130), which are to similar effect. For the duties of the prosecuting authority see The Criminal Justice Act 1987 (Notice of Transfer) Regulations 1988(131) and The Criminal Justice Act 1991 (Notice of Transfer) Regulations 1992(132).]

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(133) 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(134) 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(135) 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(136) as that subsection has effect under section 3(8A) of that Act 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(137), 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 12SENDING FOR TRIAL

Documents to be sent to the Crown Court

12.1.-(1) As soon as practicable after any person is sent for trial (pursuant to section 51 of the Crime and Disorder Act 1998(138)), and in any event within 4 days from the date on which he is sent (not counting Saturdays, Sundays, Good Friday, Christmas Day or Bank Holidays), the magistrates' court officer shall, subject to section 7 of the Prosecution of Offences Act 1985(139) (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)the notice required by section 51(7) of the 1998 Act;

(c)a copy of the record made in pursuance of section 5 of the Bail Act 1976(140) relating to the granting or withholding of bail in respect of the accused on the occasion of the sending;

(d)any recognizance entered into by any person as surety for the accused together with any enlargement thereof under section 129(4) of the Magistrates' Courts Act 1980(141);

(e)the names and addresses of any interpreters engaged for the defendant for the purposes of the appearance in the magistrates' court, 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;

(f)if any person under the age of 18 is concerned in the proceedings, a statement whether the magistrates' court has given a direction under section 39 of the Children and Young Persons Act 1933(142) (prohibition of publication of certain matter in newspapers);

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

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

(i)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 sending for trial for so long as the Crown Court officer directs, having regard to any relevant circumstances.

[Note. See also section 51 of the Crime and Disorder Act 1998. On the coming into force of Schedule 3 to the Criminal Justice Act 2003(143), section 51 of the 1998 Act will apply to either way as well as indictable only offences, and section 51A will extend the section 51 procedure to children and young persons(144). For the procedure governing the service of evidence by the prosecution where an accused is sent for trial, see The Crime and Disorder Act 1998 (Service of Prosecution Evidence) Regulations 2000(145).]

Time for first appearance of accused sent for trial

12.2. A Crown Court officer to whom notice has been given under section 51(7) of the Crime and Disorder Act 1998, shall list the first Crown Court appearance of the person to whom the notice relates in accordance with any directions given by the magistrates' court.

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

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(146) or section 53(1) of the Criminal Justice Act 1991(147); 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(148).

[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(149);

(b)under paragraph 5(1) of Schedule 6 to the 1991 Act(150); or

(c)under paragraph 2(1) of Schedule 3 to the 1998 Act(151)

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 14 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 14 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(152) 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 14 days after the day on which notice of transfer was given under the 1991 Act; or

(c)not later than 14 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

[Note. See also sections 3, 4 and 5 of the Indictments Act 1915(153) and section 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933(154).]

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(155). Under section 51D of that Act(156) 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(157), and The Crime and Disorder Act 1998 (Service of Prosecution Evidence) Regulations 2005(158), 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(159) (on a defendant's appeal against conviction) or under section 77 of the Criminal Justice Act 2003(160) (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(161), and transfer for trial under section 4 of the Criminal Justice Act 1987(162) (serious fraud cases) or under section 53 of the Criminal Justice Act 1991(163) (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(164) (specified summary offences founded on that evidence).]

PART 15PREPARATORY HEARINGS IN THE CROWN COURT

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(165) (cases of serious or complex fraud), or

(ii)section 29 of the Criminal Procedure and Investigations Act 1996(166) (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(167) (danger of jury tampering), or

(ii)section 17 of the Domestic Violence, Crime and Victims Act 2004(168) (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(169), and under section 34 of the 1996 Act(170), 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(171) and section 30 of the Criminal Procedure and Investigations Act 1996(172).]

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

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(173) (identity of a person under 18);

(b)section 4(2) of the Contempt of Court Act 1981(174) (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(175) (postponed report of derogatory assertion in mitigation);

(e)section 46 of the Youth Justice and Criminal Evidence Act 1999(176) (identity of a vulnerable adult witness);

(f)section 82 of the Criminal Justice Act 2003(177) (order for retrial after acquittal); or

(g)section 75 of the Serious Organised Crime and Police Act 2005(178) (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(179) (youth court proceedings);

(b)section 8 of the Magistrates' Courts Act 1980(180) (committal for trial proceedings);

(c)section 8C of the Magistrates' Courts Act 1980(181) (pre-trial ruling in magistrates' courts);

(d)section 11 of the Criminal Justice Act 1987(182) (preparatory hearing in the Crown Court);

(e)paragraph 6 of Schedule 6 to the Criminal Justice Act 1991(183) (transfer for trial proceedings);

(f)section 1 of the Sexual Offences (Amendment) Act 1992(184) (identity of complainant of sexual offence);

(g)section 37 of the Criminal Procedure and Investigations Act 1996(185) (preparatory hearing in the Crown Court);

(h)section 41 of the Criminal Procedure and Investigations Act 1996(186) (pre-trial ruling in the Crown Court);

(i)paragraph 3 of Schedule 3 to the Crime and Disorder Act 1998(187) (sending for trial proceedings);

(j)section 47 of the Youth Justice and Criminal Evidence Act 1999(188) (special measures direction); and

(k)section 71 of the Criminal Justice Act 2003(189) (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(190) (indecent or medical matter);

(b)section 2 of the Contempt of Court Act 1981(191) (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(192). See also rule 37.2.

The court can restrict access to the courtroom under-

(a)section 8(4) of the Official Secrets Act 1920(193), during proceedings for an offence under the Official Secrets Acts 1911 and 1920;

(b)section 37 of the Children and Young Persons Act 1933(194), where the court receives evidence from a person under 18;

(c)section 75 of the Serious Organised Crime and Police Act 2005(195), 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(196), 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(197), 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(198), 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(199), 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 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(200) 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) 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.

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.

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

PART 17EXTRADITION

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(202) 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(203) (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, 5^th 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(204) 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(205).

(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(206).

[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(207) (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(208) 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(209) 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(210), 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(211).

(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

[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 the person(s) 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(212);

(b)section 7 of the Bail Act 1976(213);

(c)sections 1 and 97 of the Magistrates' Courts Act 1980(214); and

(d)sections 79, 80 and 81(4), (5) of the Senior Courts Act 1981(215).

See also section 27A of the Magistrates' Courts Act 1980(216) (power to transfer criminal proceedings) and section 78(2) of the Senior Courts Act 1981(217) (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 the person(s) 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)(218) or section 136(219) of the Magistrates' Courts Act 1980, or to customs detention under section 152 of the Criminal Justice Act 1988(220), 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.

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)the person(s) 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(221) (remand to local authority accommodation);

(b)section 80 of the Magistrates' Courts Act 1980(222) (application of money found on defaulter to satisfy sum adjudged); or

(c)section 82(1) or (4) of the 1980 Act(223) (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. Under section 23 of that 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 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(224), "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(225) (warrants), 125A(226) (civilian enforcement officers) or 125B(227) (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(228), 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(229) (enforcement of sums adjudged to be paid);

(b)section 83(230) (process for securing attendance of offender);

(c)section 86(231) (power of magistrates' court to fix day for appearance of offender at means inquiry, etc.);

(d)section 136(232) (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(233) 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 IN MAGISTRATES' COURTS AND THE CROWN COURT

Application to a magistrates' court to vary conditions of bail

19.1.-(1) An application under section 43B(1) of the Magistrates' Courts Act of 1980(234), or section 47(1E) of the Police and Criminal Evidence Act 1984(235), to vary conditions of police bail, shall-

(a)be made in writing;

(b)contain a statement of the grounds upon which it is made;

(c)where the applicant has been bailed following charge, specify the offence with which he was charged and, in any other case, specify the offence under investigation;

(d)specify, or be accompanied by a copy of the note of, the reasons given by the custody officer for imposing or varying the conditions of bail;

(e)specify the name and address of any surety provided by the applicant before his release on bail to secure his surrender to custody; and

(f)specify the address at which the applicant would reside, if the court imposed a condition of residence.

(2) Any such application shall be sent to the court officer for-

(a)the magistrates' court appointed by the custody officer as the court before which the applicant has a duty to appear; or

(b)if no such court has been appointed, a magistrates' court acting for the local justice area in which the police station at which the applicant was granted bail or at which the conditions of his bail were varied, as the case may be, is situated,

(3) The court officer to whom an application is sent under paragraph (2) above shall serve not less than 24 hours' notice in writing of the date, time and place fixed for the hearing of the application on-

(a)the applicant;

(b)the prosecutor or, if the applicant has not been charged, the chief officer of police or other investigator, together with a copy of the application; and

(c)any surety in connection with bail in criminal proceedings granted to, or the conditions of which were varied by a custody officer in relation to, the applicant.

(4) The time fixed for the hearing shall be not later than 72 hours after receipt of the application. In reckoning for the purposes of this paragraph any period of 72 hours, no account shall be taken of Christmas Day, Boxing Day, Good Friday, any bank holiday, or any Saturday or Sunday.

(5) A party who wants a magistrates' court to vary or impose conditions of bail under section 3(8) of the Bail Act 1976(236), must-

(a)serve notice, not less than 24 hours before the hearing at which that party intends to apply, on-

(i)the court officer, and

(ii)the other party; and

(b)in that notice-

(i)specify the variation or conditions proposed, and

(ii)explain the reasons.

(6) If the magistrates' court hearing an application under section 43B(1) of the 1980 Act or section 47(1E) of the 1984 Act discharges or enlarges any recognizance entered into by any surety or increases or reduces the amount in which that person is bound, the court officer shall forthwith give notice thereof to the applicant and to any such surety.

(7) The court may-

(a)vary or waive a time limit under paragraph (3) or (5) of this rule; and

(b)allow a notice to be-

(i)in a different form to one set out in the Practice Direction, or

(ii)given orally.

[Note. See also section 43B of the Magistrates' Courts Act 1980 and section 47 of the Police and Criminal Evidence Act 1984(237).

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

Application to a magistrates' court to reconsider grant of police bail

19.2.-(1) The appropriate court for the purposes of section 5B of the Bail Act 1976(238) in relation to the decision of a constable to grant bail shall be-

(a)the magistrates' court appointed by the custody officer as the court before which the person to whom bail was granted has a duty to appear; or

(b)if no such court has been appointed, a magistrates' court acting for the local justice area in which the police station at which bail was granted is situated.

(2) An application under section 5B(1) of the 1976 Act shall-

(a)be made in writing;

(b)contain a statement of the grounds on which it is made;

(c)specify the offence which the proceedings in which bail was granted were connected with, or for;

(d)specify the decision to be reconsidered (including any conditions of bail which have been imposed and why they have been imposed);

(e)specify the name and address of any surety provided by the person to whom the application relates to secure his surrender to custody; and

(f)contain notice of the powers available to the court under section 5B of the 1976 Act.

(3) The court officer to whom an application is sent under paragraph (2) above shall serve notice in writing of the date, time and place fixed for the hearing of the application on-

(a)the prosecutor who made the application;

(b)the person to whom bail was granted, together with a copy of the application; and

(c)any surety specified in the application.(4)

(4) The time fixed for the hearing shall be not later than 72 hours after receipt of the application. In reckoning for the purpose of this paragraph any period of 72 hours, no account shall be taken of Christmas Day, Good Friday, any bank holiday or any Sunday.

(5) At the hearing of an application under section 5B of the 1976 Act the court shall consider any representations made by the person affected (whether in writing or orally) before taking any decision under that section with respect to him; and, where the person affected does not appear before the court, the court shall not take such a decision unless it is proved to the satisfaction of the court, on oath or in the manner set out by rule 4.11, that the notice required to be given under paragraph (3) of this rule was served on him before the hearing.

(6) Where the court proceeds in the absence of the person affected in accordance with paragraph (6)-

(a)if the decision of the court is to vary the conditions of bail or impose conditions in respect of bail which has been granted unconditionally, the court officer shall notify the person affected;

(b)if the decision of the court is to withhold bail, the order of the court under section 5B(5)(b) of the 1976 Act (surrender to custody) shall be signed by the justice issuing it or state his name and be authenticated by the signature of the clerk of the court.

Notice of change of time for appearance before magistrates' court

19.3. Where-

(a)a person has been granted bail under the Police and Criminal Evidence Act 1984(239) subject to a duty to appear before a magistrates' court and the court before which he is to appear appoints a later time at which he is to appear; or

(b)a magistrates' court further remands a person on bail under section 129 of the Magistrates' Courts Act 1980(240) in his absence,

it shall give him and his sureties, if any, notice thereof.

Directions by a magistrates' court as to security, etc

19.4. Where a magistrates' court, under section 3(5) or (6) of the Bail Act 1976(241), imposes any requirement to be complied with before a person's release on bail, the court may give directions as to the manner in which and the person or persons before whom the requirement may be complied with.

[Note. See also section 3 of the Bail Act 1976. As to the estreatment of recognizances in magistrates' courts on failure to surrender see section 120 of the Magistrates' Courts Act 1980. For the procedure where a defendant fails to surrender, see also direction I.13 in the Practice Direction.]

Requirements to be complied with before release on bail granted by a magistrates' court

19.5.-(1) Where a magistrates' court has fixed the amount in which a person (including any surety) is to be bound by a recognizance, the recognizance may be entered into-

(a)in the case of a surety where the accused is in a prison or other place of detention, before the governor or keeper of the prison or place as well as before the persons mentioned in section 8(4)(a) of the Bail Act 1976(242);

(b)in any other case, before a justice of the peace, a justices' clerk, a magistrates' court officer, a police officer who either is of the rank of inspector or above or is in charge of a police station or, if the person to be bound is in a prison or other place of detention, before the governor or keeper of the prison or place; or

(c)where a person other than a police officer is authorised under section 125A or 125B of the Magistrates' Courts Act 1980 to execute a warrant of arrest providing for a recognizance to be entered into by the person arrested (but not by any other person), before the person executing the warrant.

(2) The court officer for a magistrates' court which has fixed the amount in which a person (including any surety) is to be bound by a recognizance or, under section 3(5), (6) or (6A) of the 1976 Act(243) imposed any requirement to be complied with before a person's release on bail or any condition of bail shall issue a certificate showing the amount and conditions, if any, of the recognizance, or as the case may be, containing a statement of the requirement or condition of bail; and a person authorised to take the recognizance or do anything in relation to the compliance with such requirement or condition of bail shall not be required to take or do it without production of such a certificate as aforesaid.

(3) If any person proposed as a surety for a person committed to custody by a magistrates' court produces to the governor or keeper of the prison or other place of detention in which the person so committed is detained a certificate to the effect that he is acceptable as a surety, signed by any of the justices composing the court or the clerk of the court and signed in the margin by the person proposed as surety, the governor or keeper shall take the recognizance of the person so proposed.

(4) Where the recognizance of any person committed to custody by a magistrates' court or of any surety of such a person is taken by any person other than the court which committed the first-mentioned person to custody, the person taking the recognizance shall send it to the court officer for that court:

Provided that, in the case of a surety, if the person committed has been committed to the Crown Court for trial or under any of the enactments mentioned in rule 43.1(1), the person taking the recognizance shall send it to the Crown Court officer.

Notice to governor of prison, etc, where release from custody is ordered by a magistrates' court

19.6. Where a magistrates' court has, with a view to the release on bail of a person in custody, fixed the amount in which he or any surety of such a person shall be bound or, under section 3(5), (6) or (6A) of the Bail Act 1976, imposed any requirement to be complied with before his release or any condition of bail-

(a)the magistrates' court officer shall give notice thereof to the governor or keeper of the prison or place where that person is detained by sending him such a certificate as is mentioned in rule 19.5(2); and

(b)any person authorised to take the recognizance of a surety or do anything in relation to the compliance with such requirement shall, on taking or doing it, send notice thereof by post to the said governor or keeper and, in the case of a recognizance of a surety, shall give a copy of the notice to the surety.

Release when notice received by governor of prison that recognizances have been taken or requirements complied with

19.7. Where a magistrates' court has, with a view to the release on bail of a person in custody, fixed the amount in which he or any surety of such a person shall be bound or, under section 3(5) or (6) of the Bail Act 1976, imposed any requirement to be complied with before his release and given notice thereof in accordance with this Part to the governor or keeper of the prison or place where that person is detained, the governor or keeper shall, when satisfied that the recognizances of all sureties required have been taken and that all such requirements have been complied with, and unless he is in custody for some other cause, release him.

Notice from a magistrates' court of enlargement of recognizances

19.8.-(1) If a magistrates' court before which any person is bound by a recognizance to appear enlarges the recognizance to a later time under section 129 of the Magistrates' Courts Act 1980 in his absence, it shall give him and his sureties, if any, notice thereof.

(2) If a magistrates' court, under section 129(4) of the 1980 Act, enlarges the recognizance of a surety for a person committed for trial on bail, it shall give the surety notice thereof.

[Note. See also section 129 of the Magistrates' Courts Act 1980.]

Further remand by a youth court

19.9. Where a child or young person has been remanded, and the period of remand is extended in his absence in accordance with section 48 of the Children and Young Persons Act 1933(244), notice shall be given to him and his sureties (if any) of the date at which he will be required to appear before the court.

Notes of argument in magistrates' court bail hearings

19.10. Where a magistrates' court hears full argument as to bail, the clerk of the court shall take a note of that argument.

Bail records to be entered in register of a magistrates' court

19.11. Any record required by section 5 of the Bail Act 1976(245) to be made by a magistrates' court (together with any note of reasons required by section 5(4) to be included and the particulars set out in any certificate granted under section 5(6A)) shall be made by way of an entry in the register.

[Note. See also section 5 of the Bail Act 1976. For the general requirement to make court records, see rule 5.4.]

Notification of bail decision by a magistrate after arrest while on bail

19.12. Where a person who has been released on bail and is under a duty to surrender into the custody of a court is brought under section 7(4)(a) of the Bail Act 1976(246) before a justice of the peace, the justice shall cause a copy of the record made in pursuance of section 5 of that Act relating to his decision under section 7(5) of that Act(247) in respect of that person to be sent to the court officer for that court:

Provided that this rule shall not apply where the court is a magistrates' court acting for the same local justice area as that for which the justice acts.

[Note. See also section 7 of the Bail Act 1976.]

Transfer of remand hearings

19.13.-(1) Where a magistrates' court, under section 130(1) of the Magistrates' Courts Act 1980(248), orders that an accused who has been remanded in custody be brought up for any subsequent remands before an alternate magistrates' court, the court officer for the first-mentioned court shall, as soon as practicable after the making of the order and in any case within 2 days thereafter (not counting Sundays, Good Friday, Christmas Day or bank holidays), send to the court officer for the alternate court-

(a)a statement indicating the offence or offences charged;

(b)a copy of the record made by the first-mentioned court in pursuance of section 5 of the Bail Act 1976 relating to the withholding of bail in respect of the accused when he was last remanded in custody;

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

(d)a copy of any application for a representation order;

(e)if the first-mentioned court has made an order under section 8(2) of the 1980 Act(249) (removal of restrictions on reports of committal proceedings), a statement to that effect.

(f)a statement indicating whether or not the accused has a solicitor acting for him in the case and has consented to the hearing and determination in his absence of any application for his remand on an adjournment of the case under sections 5, 10(1) and 18(4) of the 1980(250) Act together with a statement indicating whether or not that consent has been withdrawn;

(g)a statement indicating the occasions, if any, on which the accused has been remanded under section 128(3A) of the 1980 Act(251) without being brought before the first-mentioned court; and

(h)if the first-mentioned court remands the accused under section 128A(252) of the 1980 Act on the occasion upon which it makes the order under section 130(1) of that Act, a statement indicating the date set under section 128A(2) of that Act.

(2) Where the first-mentioned court is satisfied as mentioned in section 128(3A) of the 1980 Act, paragraph (1) shall have effect as if for the words -�an accused who has been remanded in custody be brought up for any subsequent remands before' there were substituted the words -�applications for any subsequent remands of the accused be made to'.

(3) The court officer for an alternate magistrates' court before which an accused who has been remanded in custody is brought up for any subsequent remands in pursuance of an order made as aforesaid shall, as soon as practicable after the order ceases to be in force and in any case within 2 days thereafter (not counting Sundays, Good Friday, Christmas Day or bank holidays), send to the court officer for the magistrates' court which made the order-

(a)a copy of the record made by the alternate court in pursuance of section 5 of the 1976 Act relating to the grant or withholding of bail in respect of the accused when he was last remanded in custody or on bail;

(b)a copy of any representation order made by the alternate court;

(c)a copy of any application for a representation order made to the alternate court;

(d)if the alternate 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;

(e)a statement indicating whether or not the accused has a solicitor acting for him in the case and has consented to the hearing and determination in his absence of any application for his remand on an adjournment of the case under sections 5, 10(1) and 18(4) of the 1980 Act together with a statement indicating whether or not that consent has been withdrawn; and

(f)a statement indicating the occasions, if any, on which the accused has been remanded by the alternate court under section 128(3A) of the 1980 Act without being brought before that court.

(4) Where the alternate court is satisfied as mentioned in section 128(3A) of the 1980 Act paragraph (2) above shall have effect as if for the words -�an accused who has been remanded in custody is brought up for any subsequent remands' there shall be substituted the words -�applications for the further remand of the accused are to be made'.

Notice of further remand in certain cases

19.14. Where a transfer direction has been given by the Secretary of State under section 47 of the Mental Health Act 1983(253) in respect of a person remanded in custody by a magistrates' court and the direction has not ceased to have effect, the court officer shall give notice in writing to the managers of the hospital where he is detained of any further remand under section 128 of the Magistrates' Courts Act 1980.

Cessation of transfer direction

19.15. Where a magistrates' court directs, under section 52(5) of the Mental Health Act 1983(254), that a transfer direction given by the Secretary of State under section 48 of that Act in respect of a person remanded in custody by a magistrates' court shall cease to have effect, the court officer shall give notice in writing of the court's direction to the managers of the hospital specified in the Secretary of State's direction and, where the period of remand has not expired or the person has been committed to the Crown Court for trial or to be otherwise dealt with, to the Governor of the prison to which persons of the sex of that person are committed by the court if remanded in custody or committed in custody for trial.

[Note. As to the requirement to give notice to the prison governor and hospital authorities when a defendant subject to a transfer direction is transferred, committed or sent to the Crown Court for trial, see rules 11.3 and 19.20.]

Lodging an appeal against a grant of bail by a magistrates' court

19.16.-(1) Where the prosecution wishes to exercise the right of appeal, under section 1 of the Bail (Amendment) Act 1993(255), to a judge of the Crown Court against a decision to grant bail, the oral notice of appeal must be given to the justices' clerk and to the person concerned, at the conclusion of the proceedings in which such bail was granted and before the release of the person concerned.

(2) When oral notice of appeal is given, the justices' clerk shall announce in open court the time at which such notice was given.

(3) A record of the prosecution's decision to appeal and the time the oral notice of appeal was given shall be made in the register and shall contain the particulars set out.

(4) Where an oral notice of appeal has been given the court shall remand the person concerned in custody by a warrant of commitment.

(5) On receipt of the written notice of appeal required by section 1(5) of the 1993 Act, the court shall remand the person concerned in custody by a warrant of commitment, until the appeal is determined or otherwise disposed of.

(6) A record of the receipt of the written notice of appeal shall be made in the same manner as that of the oral notice of appeal under paragraph (3).

(7) If, having given oral notice of appeal, the prosecution fails to serve a written notice of appeal within the two hour period referred to in section 1(5) of the 1993 Act the justices' clerk shall, as soon as practicable, by way of written notice (served by a court officer) to the persons in whose custody the person concerned is, direct the release of the person concerned on bail as granted by the magistrates' court and subject to any conditions which it imposed.

(8) If the prosecution serves notice of abandonment of appeal on a court officer, the justices' clerk shall, forthwith, by way of written notice (served by the court officer) to the governor of the prison where the person concerned is being held, or the person responsible for any other establishment where such a person is being held, direct his release on bail as granted by the magistrates' court and subject to any conditions which it imposed.

(9) A court officer shall record the prosecution's failure to serve a written notice of appeal, or its service of a notice of abandonment.

(10) Where a written notice of appeal has been served on a magistrates' court officer, he shall provide as soon as practicable to a Crown Court officer a copy of that written notice, together with-

(a)the notes of argument made by the court officer for the court under rule 19.10; and

(b)a note of the date, or dates, when the person concerned is next due to appear in the magistrates' court, whether he is released on bail or remanded in custody by the Crown Court.

(11) References in this rule to -�the person concerned' are references to such a person within the meaning of section 1 of the 1993 Act.

Crown Court procedure on appeal against grant of bail by a magistrates' court

19.17.-(1) This rule shall apply where the prosecution appeals under section 1 of the Bail (Amendment) Act 1993 against a decision of a magistrates' court granting bail and in this rule, -�the person concerned' has the same meaning as in that Act.

(2) The written notice of appeal required by section 1(5) of the 1993 Act shall be in the form set out in the Practice Direction and shall be served on-

(a)the magistrates' court officer; and

(b)the person concerned.

(3) The Crown Court officer shall enter the appeal and give notice of the time and place of the hearing to-

(a)the prosecution;

(b)the person concerned or his legal representative; and

(c)the magistrates' court officer.

(4) The person concerned shall be entitled to be present at the hearing of the appeal.

(5) Where a person concerned has not been able to instruct a solicitor to represent him at the appeal, he may give notice to the Crown Court requesting that the Official Solicitor shall represent him at the appeal, and the court may, if it thinks fit, assign the Official Solicitor to act for the person concerned accordingly.

(6) At any time after the service of written notice of appeal under paragraph (2), the prosecution may abandon the appeal by giving notice in writing in the form set out in the Practice Direction.

(7) The notice of abandonment required by the preceding paragraph shall be served on-

(a)the person concerned or his legal representative;

(b)the magistrates' court officer; and

(c)the Crown Court officer.

(8) Any record required by section 5 of the Bail Act 1976 (together with any note of reasons required by subsection (4) of that section to be included) shall be made by way of an entry in the file relating to the case in question and the record shall include the following particulars, namely-

(a)the effect of the decision;

(b)a statement of any condition imposed in respect of bail, indicating whether it is to be complied with before or after release on bail; and

(c)where bail is withheld, a statement of the relevant exception to the right to bail (as provided in Schedule 1 to the 1976 Act) on which the decision is based.

(9) The Crown Court officer shall, as soon as practicable after the hearing of the appeal, give notice of the decision and of the matters required by the preceding paragraph to be recorded to-

(a)the person concerned or his legal representative;

(b)the prosecution;

(c)the police;

(d)the magistrates' court officer; and

(e)the governor of the prison or person responsible for the establishment where the person concerned is being held.

(10) Where the judge hearing the appeal grants bail to the person concerned, the provisions of rule 19.18(9) (informing the Court of any earlier application for bail) and rule 19.22 (conditions attached to bail granted by the Crown Court) shall apply as if that person had applied to the Crown Court for bail.

(11) The notices required by paragraphs (3), (5), (7) and (9) of this rule may be served under rule 4.6 (service by fax, e-mail or other electronic means) and the notice required by paragraph (3) may be given by telephone.

(12) The Crown Court may hear an appeal to which this rule applies in public or in private.

[Note. Under sections 57A and 57B of the Crime and Disorder Act 1998(256), the person concerned is to be treated as present in court when, by virtue of a live link direction within the meaning of those sections, that person attends a hearing through a live link.]

Application or appeal to the Crown Court relating to bail

19.18.-(1) This rule applies where-

(a)an application to the Crown Court relating to bail is made otherwise than during the hearing of proceedings in the Crown Court;

(b)a defendant appeals under section 16 of the Criminal Justice Act 2003(257).

(2) Subject to paragraph (7) below, notice in writing of intention to make such an application to the Crown Court shall, at least 24 hours before it is made, be given to the prosecutor and if the prosecution is being carried on by the Crown Prosecution Service, to the appropriate Crown Prosecutor or, if the application is to be made by the prosecutor or a constable under section 3(8) of the Bail Act 1976(258), to the person to whom bail was granted.

(3) On receiving notice under paragraph (2), the prosecutor or appropriate Crown Public Prosecutor or, as the case may be, the person to whom bail was granted shall-

(a)notify the Crown Court officer and the applicant that he wishes to be represented at the hearing of the application;

(b)notify the Crown Court officer and the applicant that he does not oppose the application; or

(c)give to the Crown Court officer, for the consideration of the Crown Court, a written statement of his reasons for opposing the application, at the same time sending a copy of the statement to the applicant.

(4) A notice under paragraph (2) shall be in the form set out in the Practice Direction or a form to the like effect, and the applicant shall give a copy of the notice to the Crown Court officer.

(5) Except in the case of an application made by the prosecutor or a constable under section 3(8) of the 1976 Act, the applicant shall not be entitled to be present on the hearing of his application unless the Crown Court gives him leave to be present.

(6) Where a person who is in custody or has been released on bail desires to make an application relating to bail and has not been able to instruct a solicitor to apply on his behalf under the preceding paragraphs of this rule, he may give notice in writing to the Crown Court of his desire to make an application relating to bail, requesting that the Official Solicitor shall act for him in the application, and the Court may, if it thinks fit, assign the Official Solicitor to act for the applicant accordingly.

(7) Where the Official Solicitor has been so assigned the Crown Court may, if it thinks fit, dispense with the requirements of paragraph (2) and deal with the application in a summary manner.

(8) Any record required by section 5 of the 1976 Act (together with any note of reasons required by section 5(4) to be included) shall be made by way of an entry in the file relating to the case in question and the record shall include the following particulars, namely-

(a)the effect of the decision;

(b)a statement of any condition imposed in respect of bail, indicating whether it is to be complied with before or after release on bail;

(c)where conditions of bail are varied, a statement of the conditions as varied; and

(d)where bail is withheld, a statement of the relevant exception to the right to bail (as provided in Schedule 1 to the 1976 Act) on which the decision is based.

(9) Every person who makes an application to the Crown Court relating to bail shall inform the Court of any earlier application to the High Court or the Crown Court relating to bail in the course of the same proceedings.

(10) The Crown Court may hear an application or appeal to which this rule applies in public or in private.

[Note. As to applications for bail before committal for trial see also direction V.53, and for bail during trial see also direction III.25, in the Practice Direction.]

Notice to governor of prison of committal on bail

19.19.-(1) Where the accused is committed or sent for trial on bail, a magistrates' court officer shall give notice thereof in writing to the governor of the prison to which persons of the sex of the person committed or sent are committed or sent by that court if committed or sent in custody for trial and also, if the person committed or sent is under 21, to the governor of the remand centre to which he would have been committed or sent if the court had refused him bail.

(2) Where a corporation is committed or sent for trial, a magistrates' court officer shall give notice thereof to the governor of the prison to which would be committed or sent a man committed or sent by that court in custody for trial.

[Note. For the equivalent provision where a defendant is transferred for trial, see rule 11.2.

On the coming into force of Schedule 3 to the Criminal Justice Act 2003, committal for trial will be abolished and cases triable either way will be sent to the Crown Court under sections 51 and 51A of the Crime and Disorder Act 1998(259), in the same way as cases triable only on indictment.]

Notices on committal of person subject to transfer direction

19.20. Where a transfer direction has been given by the Secretary of State under section 48 of the Mental Health Act 1983(260) in respect of a person remanded in custody by a magistrates' court and, before the direction ceases to have effect, that person is committed or sent for trial, a magistrates' court officer shall give notice-

(a)to the governor of the prison to which persons of the sex of that person are committed or sent by that court if committed or sent in custody for trial; and

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

[Note. For the equivalent provision where a defendant is transferred for trial see rule 11.3. On the coming into force of Schedule 3 to the Criminal Justice Act 2003, committal for trial will be abolished and cases triable either way will be sent to the Crown Court under sections 51 and 51A of the Crime and Disorder Act 1998, in the same way as cases triable only on indictment.]

Variation of arrangements for bail on committal to the Crown Court

19.21. Where a magistrates' court has committed or sent a person on bail to the Crown Court for trial or under any of the enactments mentioned in rule 43.1(1) and subsequently varies any conditions of the bail or imposes any conditions in respect of the 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 Bail Act 1976 relating to such variation or imposition of conditions.

[Note. See also section 5 of the Bail Act 1976.

For the equivalent provision where a defendant is transferred to the Crown Court, see rule 11.4.

On the coming into force of Schedule 3 to the Criminal Justice Act 2003 committal for trial will be abolished and cases triable either way will be sent to the Crown Court under sections 51 and 51A of the Crime and Disorder Act 1998, in the same way as cases triable only on indictment.]

Conditions attached to bail granted by the Crown Court

19.22.-(1) Where the Crown Court grants bail, the recognizance of any surety required as a condition of bail may be entered into before an officer of the Crown Court or, where the person who has been granted bail is in a prison or other place of detention, before the governor or keeper of the prison or place as well as before the persons specified in section 8(4) of the Bail Act 1976.

(2) Where the Crown Court under section 3(5) or (6) of the 1976 Act imposes a requirement to be complied with before a person's release on bail, the Court may give directions as to the manner in which and the person or persons before whom the requirement may be complied with.

(3) A person who, in pursuance of an order made by the Crown Court for the grant of bail, proposes to enter into a recognizance or give security must, unless the Crown Court otherwise directs, give notice to the prosecutor at least 24 hours before he enters into the recognizance or gives security as aforesaid.

(4) Where, in pursuance of an order of the Crown Court, a recognizance is entered into or any requirement imposed under section 3(5) or (6) of the 1976 Act is complied with (being a requirement to be complied with before a person's release on bail) before any person, it shall be his duty to cause the recognizance or, as the case may be, a statement of the requirement to be transmitted forthwith to the court officer; and a copy of the recognizance or statement shall at the same time be sent to the governor or keeper of the prison or other place of detention in which the person named in the order is detained, unless the recognizance was entered into or the requirement was complied with before such governor or keeper.

(5) Where, in pursuance of section 3(5) of the 1976 Act, security has been given in respect of a person granted bail with a duty to surrender to the custody of the Crown Court and either-

(a)that person surrenders to the custody of the Court; or

(b)that person having failed to surrender to the custody of the Court, the Court decides not to order the forfeiture of the security,

the court officer shall as soon as practicable give notice of the surrender to custody or, as the case may be, of the decision not to forfeit the security to the person before whom the security was given.

Estreat of recognizances in respect of person bailed to appear before the Crown Court

19.23.-(1) Where a recognizance has been entered into in respect of a person granted bail to appear before the Crown Court and it appears to the Court that a default has been made in performing the conditions of the recognizance, other than by failing to appear before the Court in accordance with any such condition, the Court may order the recognizance to be estreated.

(2) Where the Crown Court is to consider making an order under paragraph (1) for a recognizance to be estreated, the court officer shall give notice to that effect to the person by whom the recognizance was entered into indicating the time and place at which the matter will be considered; and no such order shall be made before the expiry of 7 days after the notice required by this paragraph has been given.

[Note. As to forfeiture of recognizances on failure to surrender, see rule 19.24.]

Forfeiture of recognizances in respect of person bailed to appear before the Crown Court

19.24.-(1) Where a recognizance is conditioned for the appearance of an accused before the Crown Court and the accused fails to appear in accordance with the condition, the Court shall declare the recognizance to be forfeited.

(2) Where the Crown Court declares a recognizance to be forfeited under paragraph (1), the court officer shall issue a summons to the person by whom the recognizance was entered into requiring him to appear before the Court at a time and place specified in the summons to show cause why the Court should not order the recognizance to be estreated.

(3) At the time specified in the summons the Court may proceed in the absence of the person by whom the recognizance was entered into if it is satisfied that he has been served with the summons.

[Note. As to the estreat of recognizances on failure to comply with conditions of bail, see rule 19.23.

For the procedure where a defendant fails to surrender see also direction I.13 in the Practice Direction.]

Grant of bail subject to a condition of residence

19.25.-(1) The defendant must notify the prosecutor of the address at which the defendant would reside 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.

[Note. Under section 4 of the Bail Act 1976(261), the general rule, subject to exceptions, is that a defendant must be granted bail. Schedule 1 to the Act sets out some of the exceptions. Paragraph 5 of that Schedule allows a court to withhold bail if satisfied that it has not been practicable, for want of time since the institution of the proceedings, to obtain sufficient information for it to take the decisions required by that Schedule.]

Grant of bail subject to electronic monitoring requirements

19.26.-(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)the offence or offences 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 name, 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(262), 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(263) set out conditions for imposing such requirements.

Under section 3AC of the 1976 Act(264), where the court imposes electronic monitoring requirements they must provide for the appointment of a monitor.]

Grant of bail subject to accommodation or support requirements

19.27.-(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)the offence or offences 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 name, and the means by which the service provider may be contacted, and

(ii)the address of any accommodation in which the defendant must reside; 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.

PART 20CUSTODY TIME LIMITS

Appeal to the Crown Court against decision in respect of a custody time limit

20.1.-(1) This rule applies-

(a)to any appeal brought by an accused, under section 22(7) of the Prosecution of Offences Act 1985(265), against a decision of a magistrates' court to extend, or further extend, a custody time limit imposed by regulations made under section 22(1) of the 1985 Act; and

(b)to any appeal brought by the prosecution, under section 22(8) of the 1985 Act, against a decision of a magistrates' court to refuse to extend, or further extend, such a time limit.

(2) An appeal to which this rule applies shall be commenced by the appellant's giving notice in writing of appeal-

(a)to the court officer for the magistrates' court which took the decision;

(b)if the appeal is brought by the accused, to the prosecutor and, if the prosecution is to be carried on by the Crown Prosecution Service, to the appropriate Crown Prosecutor;

(c)if the appeal is brought by the prosecution, to the accused; and

(d)to the Crown Court officer.

(3) The notice of an appeal to which this rule applies shall state the date on which the custody time limit applicable to the case is due to expire and, if the appeal is brought by the accused under section 22(7) of the 1985 Act, the date on which the custody time limit would have expired had the court decided not to extend or further extend that time limit.

(4) On receiving notice of an appeal to which this rule applies, the Crown Court officer shall enter the appeal and give notice of the time and place of the hearing to-

(a)the appellant;

(b)the other party to the appeal; and

(c)the court officer for the magistrates' court which took the decision.

(5) Without prejudice to the power of the Crown Court to give leave for an appeal to be abandoned, an appellant may abandon an appeal to which this rule applies by giving notice in writing to any person to whom notice of the appeal was required to be given by paragraph (2) of this rule not later than the third day preceding the day fixed for the hearing of the appeal:

Provided that, for the purpose of determining whether notice was properly given in accordance with this paragraph, there shall be disregarded any Saturday and Sunday and any day which is specified to be a bank holiday in England and Wales under section 1(1) of the Banking and Financial Dealings Act 1971(266).

[Note. See also section 22 of the Prosecution of Offences Act 1985; and for the procedure for applying for an extension of a custody time limit, see The Prosecution of Offences (Custody Time Limits) Regulations 1987(267).]

Hearing of application or appeal to the Crown Court

20.2. The court may hear in public or in private-

(a)an application under section 22(3) of the 1985 Act to extend a custody time limit;

(b)an appeal to which rule 20.1 applies.

PART 21INITIAL DETAILS OF THE PROSECUTION CASE

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(268). 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 12 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

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(269) 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(270), 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 1 ^st April, 1997 and 3 ^rd April, 2005) and 7A(8) (where the investigation began on or after 4 ^th April, 2005) of the Criminal Procedure and Investigations Act 1996(271).

See also sections 16 and 19 of the 1996 Act(272).]

Defence disclosure

22.4.-(1) This rule applies where-

(a)under section 5(273) or 6 of the Criminal Procedure and Investigations Act 1996(274), the defendant gives a defence statement;

(b)under section 6C of the 1996 Act(275), 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(276), 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(277). 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(278).

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 1 ^st April, 1997. It does not apply where the investigation began before that date. With effect from 4 ^th 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(279).

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(280) and The Criminal Procedure and Investigations Act 1996 (Code of Practice) Order 2005(281).

Prosecution disclosure

Where the investigation began between 1 ^st April, 1997, and 3 ^rd 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 4 ^th April, 2005, sections 3 and 7A of the 1996 Act(282) 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(283), 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(284), 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(285) and by The Criminal Procedure and Investigations Act 1996 (Defence Disclosure Time Limits) Regulations 2011(286). 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 1 ^st April, 1997 and 3 ^rd April, 2005;

(b)section 6A of the 1996 Act(287), where the investigation began on or after 4 ^th April, 2005. See also section 6E of the Act(288).

Where the investigation began between 1 ^st April, 1997 and 3 ^rd 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 4 ^th 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(289), 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

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

PART 24

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

PART 25

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

PART 26

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

PART 27WITNESS STATEMENTS

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(290).

[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 do so, serve a copy of the statement on-

(i)the court officer, and

(ii)each other party; and

(b)at or before that hearing, serve the statement itself on the court officer.

(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.]

PART 28WITNESS SUMMONSES, WARRANTS AND ORDERS

[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(291). The Crown Court may do so under sections 2, 2D, 3 and 4 of the Criminal Procedure (Attendance of Witnesses) Act 1965(292). 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(293).

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(294) and section 5B of the Magistrates' Courts Act 1980(295). Section 89 of the 1967 Act(296) 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(297), 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(298) 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

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(299), 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(300)),

(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(301)),

(vi)questioning a witness through an intermediary (section 29 of the 1999 Act(302)),

(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(303);

(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(304), or

(ii)through an intermediary, under sections 33BA and 33BB of the 1999 Act(305);

(d)where the court can-

(i)make a witness anonymity order, under section 86 of the Coroners and Justice Act 2009(306), 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(307), or

(ii)sections 51 and 52 of the Criminal Justice Act 2003(308);

(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(309).]

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(310), 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(311);

(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(312) or under section 39 of the Children and Young Persons Act 1933(313),

(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(314), 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(315) and section 51 of the Criminal Justice Act 2003(316).

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(317) and section 52(3) of the Criminal Justice Act 2003(318).]

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(319), 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(320) 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(321), 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(322), 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(323), 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(324) 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(325), 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(326). Section 3 of this Part contains relevant rules.

PART 30

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

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

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(327).

(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

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(328) (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(329)) 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(330)).

(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(331) 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

[Note. For the use of an expert report as evidence, see section 30 of the Criminal Justice Act 1988(332).]

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(333). It may be required also under section 11 of the Powers of Criminal Courts (Sentencing) Act 2000(334), under Part III of the Mental Health Act 1983(335) or under Part 12 of the Criminal Justice Act 2003(336). 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(337) and section 5B of the Magistrates' Courts Act 1980(338). A party who accepts another party's expert's conclusions may admit them as facts under section 10 of the Criminal Justice Act 1967(339). Evidence of examinations etc. on which an expert relies may be admissible under section 127 of the Criminal Justice Act 2003(340).]

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(341), and under section 20(3) of the Criminal Procedure and Investigations Act 1996(342), 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 7 of the Criminal Justice Act 1987(343); sections 31 and 40 of the Criminal Procedure and Investigations Act 1996(344); and section 45 of the Courts Act 2003(345).]

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

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(346).

[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 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);

(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(347) (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,

(iii)any other objection to the application.

(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(348) (ruling at pre-trial hearing in a magistrates' court), or

(ii)section 9 of the Criminal Justice Act 1987(349), or section 31 or 40 of the Criminal Procedure and Investigations Act 1996(350) (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

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(351).

[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(352) (conviction in the United Kingdom or European Union); or

(b)section 7 of the Evidence Act 1851(353) (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(354), 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(355) (ruling at pre-trial hearing in a magistrates' court), or

(ii)section 9 of the Criminal Justice Act 1987(356), or section 31 or 40 of the Criminal Procedure and Investigations Act 1996(357) (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

[Note: Section 41 of the Youth Justice and Criminal Evidence Act 1999(358) 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(359), which among other things defines -�sexual behaviour' and -�sexual offence';

(b)section 43(360), 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(361) (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 7 of the Criminal Justice Act 1987(362); sections 31 and 40 of the Criminal Procedure and Investigations Act 1996(363); and section 45 of the Courts Act 2003(364).]

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(365). 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

[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(366). In relation to a defendant under 18, they are contained in sections 45, 46 and 48 of the Children and Young Persons Act 1933(367).

See also section 18 of the Children and Young Persons Act 1963(368), section 47 of the Crime and Disorder Act 1998(369) and section 9 of the Powers of Criminal Courts (Sentencing) Act 2000(370).

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(371) and The Justices of the Peace (Size and Chairmanship of Bench) Rules 2005(372), 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(373), 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(374), where two or more justices are present one may act on behalf of all.

Section 59 of the Children and Young Persons Act 1933(375) 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(376) 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(377) (identification of any defendant or witness under 18);

(b)section 4(2) of the Contempt of Court Act 1981(378) (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(379) (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(380) (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(381) (identification of the complainant of a sexual offence); and

(c)section 47 of the Youth Justice and Criminal Evidence Act 1999(382) (special measures direction or application for such a direction).

Under section 34A of the Children and Young Persons Act 1933(383), 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(384).

Under section 37(3) of the Mental Health Act 1983(385), 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(386), 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(387) and section 3 of the Criminal Evidence Act 1898(388) 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;

(d)at any time while giving evidence, a witness may refer to a record of that witness' recollection of events, if other legislation so permits;

(e)the party who calls a witness, in examination-in-chief may ask that witness to adopt all or part of such a record as part of that witness' evidence, but only if-

(i)the parties agree, and

(ii)the court so permits;

(f)if the witness adopts any part of such a record-

(i)that part must be read aloud, or

(ii)with the court's permission, its contents may be summarised aloud.

(5) 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(389) 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(390).

Sections 1, 3, 5 and 6 of the Oaths Act 1978(391) 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(392) 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)(393);

(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(394), 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(395), 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(396), or by live link under section 32 of the Criminal Justice Act 1988(397) or section 51 of the Criminal Justice Act 2003. Parts 29 and 30 contain relevant rules.]

Evidence by written statement

37.5.-(1) This rule applies where a party introduces in evidence the written statement of a witness.

(2) The party introducing the statement must read or summarise aloud those parts that are relevant to the issues in the case.

[Note. See section 9 of the Criminal Justice Act 1967(398). Part 27 contains rules about written statements. 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(399). 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(400).]

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(401);

(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) The court may accept such a guilty plea on the hearing date, and if it does so must take account only of-

(a)the material served by the prosecutor on the defendant under this rule; and

(b)any representations by the defendant.

(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(402). 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(403) 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(404) 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(405), and sections 143, 158, 164, 172 and 174 of the Criminal Justice Act 2003(406).

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(407), the court may require a defendant to attend a sentencing hearing by live link.

Under section 162 of the Criminal Justice Act 2003(408), 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(409), 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(410), 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(411), 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(412).

The Sentencing Council may issue sentencing guidelines under section 120 of the Coroners and Justice Act 2009(413).

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. 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(414).

Under section 1 of the 2000 Act(415), 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(416).

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(417), 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(418), 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(419) and section 22 of the Welsh Language Act 1993(420).

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(421) provides for the functions of a justices' legal adviser. See also section 12 of the Magistrates' Courts Act 1980(422).]

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(423), 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(424).

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

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(425) 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(426) 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

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(427) 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(428).]

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

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(429).

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(430) 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) Rules 19.18, 19.22 and 19.23 shall apply 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(431) (with the modification as set out in paragraph (2)), as if they were applications under rule 19.18(1).

(2) Substitute the following for Rule 19.18:

"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(432) 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(433).

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(434) 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(435), 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(436), 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(437) 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 renewal in the form set out in the Practice Direction 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 in the form set out in the Practice Direction.

(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(438) 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

[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(2) of the Criminal Justice Act 2003(439); section 73(8) of the Powers of Criminal Courts (Sentencing) Act 2000(440); section 130(3) of the 2000 Act(441); section 33(2) of the Criminal Justice and Police Act 2001(442); paragraph 8(3) of Schedule 12 to the 2003 Act(443); and section 47(1) of the Road Traffic Offenders Act 1988(444).

For the duty to explain the sentence the court has passed, see section 174(1) of the 2003 Act(445) and, in a magistrates' court, rule 37.10(9) (Procedure if the court convicts).

Under section 125 of the Coroners and Justice Act 2009(446), 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(447) and 130(448) 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(449).]

Requirements of community sentence, etc.

42.2.-(1) This rule applies where the court-

(a)imposes a requirement in connection with-

(i)a community sentence,

(ii)a youth rehabilitation order, or

(iii)a suspended sentence of imprisonment; or

(b)orders the defendant to attend meetings with a supervisor.

(2) The court officer must-

(a)notify the defendant and, where the defendant is under 14, an appropriate adult, of-

(i)the requirement or requirements imposed, and

(ii)the name of the responsible officer or supervisor, and the means by which that person may be contacted; and

(b)notify the 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.

(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 name, 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 available),

(ii)the offence or offences of which the defendant was convicted,

(iii)the place or places at which the defendant's presence must be monitored,

(iv)the period or periods during which the defendant's presence there must be monitored, and

(v)the responsible officer's name, and the means by which that officer may be contacted.

[Note. See section 219(1) of the Criminal Justice Act 2003(450); paragraph 34(1) of Schedule 1 to the Criminal Justice and Immigration Act 2008(451); and section 1A(7) of the Street Offences Act 1959(452).

For the circumstances in which the court-

(a)may pass a community sentence (defined by section 147 of the Criminal Justice Act 2003(453)), or a youth rehabilitation order (defined by section 7 of the Criminal Justice and Immigration Act 2008(454)), and for the identity and duties of responsible officers and qualifying officers, see generally-

(i)Part 12 of the 2003 Act, and

(ii)Part 1 of the 2008 Act;

(b)may pass a suspended sentence of imprisonment, see section 189 of the 2003 Act(455);

(c)may order the defendant to attend meetings with a supervisor, see section 1(2A) of the Street Offences Act 1959(456).

Under sections 190 or 215 of the 2003 Act(457), or section 1(2) of the 2008 Act(458), the court may impose an electronic monitoring requirement to secure the monitoring of the defendant's compliance with certain other requirements (for example, a curfew or an exclusion).]

Notification requirements

42.3.-(1) This rule applies where, on a conviction, sentence or order, legislation requires the defendant-

(a)to notify information to the police; or

(b)to be included in a barred list.

(2) The court must tell the defendant that such requirements apply, and under what legislation.

[Note. For the circumstances in which a defendant is required to notify information to the police, see-

(a)Part 2 of, and Schedule 3 to, the Sexual Offences Act 2003(459) (notification after conviction of a specified sexual offence for which a specified sentence is imposed);

(b)Part 4 of the Counter Terrorism Act 2008(460) (notification after conviction of a specified offence of, or connected with, terrorism, for which a specified sentence is imposed).

For the circumstances in which a defendant will be included in a barred list, see paragraphs 1, 2, 7, 8 and 24 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006(461). See also paragraph 25 of that Schedule(462).

These requirements are not part of the court's sentence.]

Variation of sentence

42.4.-(1) This rule-

(a)applies where a magistrates' court or the Crown Court can vary or rescind a sentence or order; and

(b)authorises the Crown Court, in addition to its other powers, to do so within the period of 56 days beginning with another defendant's acquittal or sentencing where-

(i)defendants are tried separately in the Crown Court on the same or related facts alleged in one or more indictments, and

(ii)one is sentenced before another is acquitted or sentenced.

(2) The court may exercise its power-

(a)on application by a party; or

(b)on its own initiative.

(3) A party who wants the court to exercise that power must-

(a)apply in writing as soon as reasonably practicable after-

(i)the sentence or order that that party wants the court to vary or rescind, or

(ii)where paragraph (1)(b) applies, the other defendant's acquittal or sentencing;

(b)serve the application on-

(i)the court officer, and

(ii)each other party; and

(c)in the application-

(i)explain why the sentence should be varied or rescinded,

(ii)specify the variation that the applicant proposes, and

(iii)if the application is late, explain why.

(4) The court must not exercise its power in the defendant's absence unless-

(a)the court makes a variation proposed by the defendant; or

(b)the defendant has had an opportunity to make representations at a hearing (whether or not the defendant in fact attends).

(5) The court may-

(a)extend (even after it has expired) the time limit under paragraph (3), unless the court's power to vary or rescind the sentence cannot be exercised; and

(b)allow an application to be made orally.

[Note. Under section 142 of the Magistrates' Courts Act 1980(463), in some cases a magistrates' court can vary or rescind a sentence or other order that it has imposed or made, if that appears to be in the interests of justice. The power cannot be exercised if the Crown Court or the High Court has determined an appeal about that sentence or order.

Under section 155 of the Powers of Criminal Courts (Sentencing) Act 2000(464), the Crown Court can vary or rescind a sentence or other order that it has imposed or made. The power cannot be exercised-

(a)after the period of 56 days beginning with the sentence or order (but see the note below); or

(b)if an appeal or application for permission to appeal against that sentence or order has been determined.

Under section 155(7), Criminal Procedure Rules can extend that period of 56 days where another defendant is tried separately in the Crown Court on the same or related facts alleged in one or more indictments.]

Application to vary or discharge a compensation order

42.5.-(1) This rule applies where a magistrates' court can vary or discharge a compensation order on application by the defendant.

(2) A defendant who wants the court to exercise that power must-

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

(b)serve the application on the magistrates' court officer;

(c)where the compensation order was made in the Crown Court, serve a copy of the application on the Crown Court officer; and

(d)in the application, specify the compensation order that the defendant wants the court to vary or discharge and explain (as applicable)-

(i)what civil court finding shows that the injury, loss or damage was less than it had appeared to be when the order was made,

(ii)in what circumstances the person for whose benefit the order was made has recovered the property for the loss of which it was made,

(iii)why a confiscation order makes the defendant now unable to pay compensation in full, or

(iv)in what circumstances the defendant's means have been reduced substantially and unexpectedly, and why they seem unlikely to increase for a considerable period.

(3) The court officer must serve a copy of the application on the person for whose benefit the compensation order was made.

(4) The court must not vary or discharge the compensation order unless-

(a)the defendant, and the person for whose benefit it was made, each has had an opportunity to make representations at a hearing (whether or not either in fact attends); and

(b)where the order was made in the Crown Court, the Crown Court has notified its consent.

[Note. For the circumstances in which-

(a)the court may make a compensation order, see section 130 of the Powers of Criminal Courts (Sentencing) Act 2000(465);

(b)a magistrates' court with power to enforce such an order may vary or discharge it under the 2000 Act, see section 133(466). (Under section 133(4), where the order was made in the Crown Court, the magistrates' court must first obtain the Crown Court's consent.)]

Application to remove, revoke or suspend a disqualification or restriction

42.6.-(1) This rule applies where, on application by the defendant, the court can remove, revoke or suspend a disqualification or restriction included in a sentence (except a disqualification from driving).

(2) A defendant who wants the court to exercise such a power must-

(a)apply in writing, no earlier than the date on which the court can exercise the power;

(b)serve the application on the court officer; and

(c)in the application-

(i)specify the disqualification or restriction, and

(ii)explain why the defendant wants the court to remove, revoke or suspend it.

(3) The court officer must serve a copy of the application on the chief officer of police for the local justice area.

[Note. Part 55 contains rules about disqualification from driving. See in particular rule 55.1.

For the circumstances in which the court may-

(a)remove a disqualification from keeping a dog, see section 4(6) of the Dangerous Dogs Act 1991(467). The court may not consider an application made within 1 year of the disqualification; or, after that, within 1 year of any previous application that was refused.

(b)revoke or suspend a travel restriction order against a defendant convicted of drug trafficking, see section 35 of the Criminal Justice and Police Act 2001(468). The court may not consider an application made within 2 years of the disqualification, in any case; or, after that, before a specified period has expired.]

Application for a restitution order by the victim of a theft

42.7.-(1) This rule applies where, on application by the victim of a theft, the court can order a defendant to give that person goods obtained with the proceeds of goods stolen in that theft.

(2) A person who wants the court to exercise that power if the defendant is convicted must-

(a)apply in writing as soon as practicable (without waiting for the verdict);

(b)serve the application on the court officer; and

(c)in the application-

(i)identify the goods, and

(ii)explain why the applicant is entitled to them.

(3) The court officer must serve a copy of the application on each party.

(4) The court must not determine the application unless the applicant and each party has had an opportunity to make representations at a hearing (whether or not each in fact attends).

(5) The court may -

(a)extend (even after it has expired) the time limit under paragraph (2); and

(b)allow an application to be made orally.

[Note. For the circumstances in which the court may order-

(a)the return of stolen goods, see section 148 of the Powers of Criminal Courts (Sentencing) Act 2000(469);

(b)the defendant to give the victim of the theft goods that are not themselves the stolen goods but which represent their proceeds, see section 148(2)(b) of the 2000 Act.]

Requests for medical reports, etc.

42.8.-(1) This rule applies where the court-

(a)requests a medical examination of the defendant and a report; or

(b)requires information about the arrangements that could be made for the defendant where the court is considering-

(i)a hospital order, or

(ii)a guardianship order.

(2) Unless the court otherwise directs, the court officer must, as soon as practicable, serve on each person from whom a report or information is sought a note that-

(a)specifies the power exercised by the court;

(b)explains why the court seeks a report or information from that person; and

(c)sets out or summarises any relevant information available to the court.

[Note. The court may request a medical examination of the defendant and a report in connection with-

(a)section 4 of the Criminal Procedure (Insanity) Act 1964(470), under which the Crown Court may determine a defendant's fitness to plead;

(b)section 35 of the Mental Health Act 1983(471), under which the court may order the defendant's detention in hospital to obtain a further medical report;

(c)section 36 of the 1983 Act(472), under which the Crown Court may order the defendant's detention in hospital instead of in custody pending trial;

(d)section 37 of the 1983 Act(473), under which the court may order the defendant's detention and treatment in hospital, or make a guardianship order, instead of disposing of the case in another way;

(e)section 38 of the 1983 Act(474), under which the court may order the defendant's temporary detention and treatment in hospital instead of disposing of the case in another way;

(f)section 157 of the Criminal Justice Act 2003(475), under which the court must usually obtain and consider a medical report before passing a custodial sentence if the defendant is, or appears to be, mentally disordered;

(g)section 207 of the 2003 Act(476) (in the case of a defendant aged 18 or over), or section 1(1)(k) of the Criminal Justice and Immigration Act 2008(477) (in the case of a defendant who is under 18), under which the court may impose a mental health treatment requirement.

For the purposes of the legislation listed in (a), (d) and (e) above, the court requires the written or oral evidence of at least two registered medical practitioners, at least one of whom is approved as having special experience in the diagnosis or treatment of mental disorder. For the purposes of (b), the court requires one medical practitioner's evidence. For the purposes of (c), the court requires two medical practitioners' evidence. For the purposes of (f) and (g), the court requires the evidence of a registered medical practitioner with special experience in the diagnosis or treatment of mental disorder.

Under section 11 of the Powers of Criminal Courts (Sentencing) Act 2000(478), a magistrates' court may adjourn a trial to obtain medical reports.

Part 33 contains rules about the content of expert medical reports.

For the authorities from whom the court may require information about hospital treatment or guardianship, see sections 39 and 39A of the 1983 Act(479).]

Information to be supplied on admission to hospital or guardianship

42.9.-(1) This rule applies where the court-

(a)orders the defendant's detention and treatment in hospital; or

(b)makes a guardianship order.

(2) Unless the court otherwise directs, the court officer must, as soon as practicable, serve on (as applicable) the hospital or the guardian-

(a)a record of the court's order;

(b)such information as the court has received that appears likely to assist in treating or otherwise dealing with the defendant, including information about-

(i)the defendant's mental condition,

(ii)the defendant's other circumstances, and

(iii)the circumstances of the offence.

[Note. For the circumstances in which the court may order the defendant's detention and treatment in hospital, see sections 35(480), 36(481), 37(482), 38(483) and 44(484) of the Mental Health Act 1983. For the circumstances in which the court may make a guardianship order, see the same section 37.]

Information to be supplied on committal for sentence, etc.

42.10.-(1) This rule applies where a magistrates' court or the Crown Court convicts the defendant and-

(a)commits or adjourns the case to another court-

(i)for sentence, or

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

(b)deals with a deferred sentence, a conditional discharge, or a suspended sentence of imprisonment, imposed by another court; or

(c)makes an order that another court is, or may be, required to enforce.

(2) Unless the convicting court otherwise directs, the court officer must, as soon as practicable-

(a)where paragraph (1)(a) applies, arrange the transmission from the convicting to the other court of relevant copy court records and other relevant documents, including any-

(i)certificate of conviction,

(ii)magistrates' court register entry,

(iii)record relating to bail,

(iv)note of evidence,

(v)statement or other document introduced in evidence,

(vi)medical or other report,

(vii)representation order or application for such order, and

(viii)interim driving disqualification;

(b)where paragraph (1)(b) or (c) applies, arrange-

(i)the transmission from the convicting to the other court of notice of the convicting court's order, and

(ii)the recording of that order at the other court;

(c)in every case, notify the defendant and, where the defendant is under 14, an appropriate adult, of the location of the other court.

[Note. For the circumstances in which-

(a)a magistrates' court may (and in some cases must) commit the defendant to the Crown Court for sentence, see sections 3(485), 3A(486), 3B, 3C(487), 4(488), 4A(489) and 6(490) of the Powers of Criminal Courts (Sentencing) Act 2000 and section 43 of the Mental Health Act 1983(491);

(b)a magistrates' court may adjourn the case to another magistrates' court for sentence, see section 10 of the Magistrates' Courts Act 1980(492) and section 10 of the 2000 Act(493);

(c)a magistrates' court or the Crown Court may (and in some cases must) adjourn the case to a youth court for sentence, see section 8 of the 2000 Act(494);

(d)a youth court may adjourn the case to a magistrates' court for sentence, see section 9 of the 2000 Act(495);

(e)a magistrates' court may transfer a fine to be enforced to another court, see sections 89 and 90 of the 1980 Act(496).

For the court's powers where it convicts a defendant who is subject to a deferred sentence, a conditional discharge, or a suspended sentence of imprisonment, imposed by another court, see sections 1C and 13 of the 2000 Act(497) and section 189 of, and Schedule 12 to, the Criminal Justice Act 2003(498).

Under section 140 of the 2000 Act(499), a fine imposed or other sum ordered to be paid in the Crown Court is enforceable by a magistrates' court specified in the order, or from which the case was committed or sent to the Crown Court.

See also section 219(3) of the 2003 Act(500); paragraph 34(3) of Schedule 1 to the Criminal Justice and Immigration Act 2008(501); and section 1A(9) of the Street Offences Act 1959(502).]

PART 43

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

PART 44BREACH, REVOCATION AND AMENDMENT OF COMMUNITY AND OTHER ORDERS

When this Part applies

44.1. This Part applies where-

(a)the person responsible for a defendant's compliance with an order to which applies-

(i)Schedule 3, 5, 7 or 8 to the Powers of Criminal Courts (Sentencing) Act 2000(503),

(ii)Schedule 8 or 12 to the Criminal Justice Act 2003(504),

(iii)Schedule 2 to the Criminal Justice and Immigration Act 2008(505), or

(iv)the Schedule to the Street Offences Act 1959(506)

wants the court to deal with that defendant for failure to comply;

(b)one of the following wants the court to exercise any power it has to revoke or amend such an order-

(i)the responsible officer or supervisor,

(ii)the defendant, or

(iii)where the legislation allows, a person affected by the order; or

(c)the court considers exercising on its own initiative any power it has to revoke or amend such an order.

[Note. In the Powers of Criminal Courts (Sentencing) Act 2000-

(a)Schedule 3 deals with the breach, revocation and amendment of curfew orders and exclusion orders;

(b)Schedule 5 deals with the breach, revocation and amendment of attendance centre orders;

(c)Schedule 7 deals with the breach, revocation and amendment of supervision orders;

(d)Schedule 8 deals with the breach, revocation and amendment of action plan orders and reparation orders; and

(e)Schedules 3, 5 and 7 are repealed, with savings for existing orders, by the relevant provisions of the Criminal Justice and Immigration Act 2008; and, with savings for existing orders, Schedule 8 no longer refers to action plan orders.

In the Criminal Justice Act 2003-

(a)Schedule 8 deals with the breach, revocation and amendment of community orders; and

(b)Schedule 12 deals with the breach and amendment of suspended sentence orders.

Schedule 2 to the Criminal Justice and Immigration Act 2008 deals with the breach, revocation and amendment of youth rehabilitation orders.

Under Schedule 8 to the 2000 Act, Schedule 8 to the 2003 Act and Schedule 2 to the 2008 Act, a single member of the court can adjourn a hearing to which this Part applies.]

Application by responsible officer or supervisor

44.2.-(1) This rule applies where-

(a)the responsible officer or supervisor wants the court to-

(i)deal with a defendant for failure to comply with an order to which this Part applies, or

(ii)revoke or amend such an order; or

(b)the court considers exercising on its own initiative any power it has to-

(i)revoke or amend such an order, and

(ii)summon the defendant to attend for that purpose.

(2) Rules 7.2 to 7.4, which deal, among other things, with starting a prosecution in a magistrates' court by information and summons, apply-

(a)as if-

(i)a reference in those rules to an allegation of an offence included a reference to an allegation of failure to comply with an order to which this Part applies, and

(ii)a reference to the prosecutor included a reference to the responsible officer or supervisor; and

(b)with the necessary consequential modifications.

Application by defendant or person affected

44.3.-(1) This rule applies where-

(a)the defendant wants the court to exercise any power it has to revoke or amend an order to which this Part applies; or

(b)where the legislation allows, a person affected by such an order wants the court to exercise any such power.

(2) That defendant, or person affected, must-

(a)apply in writing, explaining why the order should be revoked or amended; and

(b)serve the application on-

(i)the court officer,

(ii)the responsible officer or supervisor, and

(iii)as appropriate, the defendant or the person affected.

Procedure on application by responsible officer or supervisor

44.4.-(1) Except for rule 37.8, the rules in Part 37, which deal with the procedure at a trial in a magistrates' court, apply-

(a)as if-

(i)a reference in those rules to an allegation of an offence included a reference to an allegation of failure to comply with an order to which this Part applies,

(ii)a reference to the court's verdict included a reference to the court's decision to revoke or amend such an order, or to exercise any other power it has to deal with the defendant, and

(iii)a reference to the court's sentence included a reference to the exercise of any such power; and

(b)with the necessary consequential modifications.

(2) The court officer must serve on each party any order revoking or amending an order to which this Part applies.

PART 45

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

PART 46

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

PART 47

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

PART 48

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

PART 49

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

PART 50CIVIL BEHAVIOUR ORDERS AFTER VERDICT OR FINDING

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

When this Part applies

50.1.-(1) This Part applies in magistrates' courts and in the Crown Court where the court could decide to make, vary or revoke a civil order-

(a)under a power that the court can exercise after reaching a verdict or making a finding, and

(b)that requires someone to do, or not do, something.

(2) A reference to a -�behaviour order' in this Part is a reference to any such order.

(3) A reference to -�hearsay evidence' in this Part is a reference to evidence consisting of hearsay within the meaning of section 1(2) of the Civil Evidence Act 1995(507).

[Note. In the circumstances set out in the Acts listed, the court can make a behaviour order:

(a)on conviction, under-

(i)section 14A of the Football Spectators Act 1989(508) (football banning orders),

(ii)section 5 of the Protection from Harassment Act 1997(509) (restraining orders),

(iii)sections 1C and 1D of the Crime and Disorder Act 1998(510) (anti-social behaviour orders and interim anti-social behaviour orders),

(iv)sections 8 and 9 of the Crime and Disorder Act 1998(511) (parenting orders),

(v)section 104 of the Sexual Offences Act 2003(512) (sexual offences prevention orders),

(vi)section 19 of the Serious Crime Act 2007(513) (serious crime prevention orders),

(vii)section 6 of the Violent Crime Reduction Act 2006(514) (drinking banning orders);

(b)on acquittal, under-

section 5A of the Protection from Harassment Act 1997(515) (restraining orders on acquittal); and

(c)on the making of a finding of (i) not guilty by reason of insanity, or (ii) disability, under-

section 104 of the Sexual Offences Act 2003 (sexual offences prevention orders).

Section 1(2) of the Civil Evidence Act 1995 defines hearsay as meaning "a statement made otherwise than by a person while giving oral evidence in the proceedings which is tendered as evidence of the matters stated". Section 13 of that Act defines a statement as meaning "any representation of fact or opinion, however made".]

Behaviour orders: general rules

50.2.-(1) The court must not make a behaviour order unless the person to whom it is directed has had an opportunity-

(a)to consider what order is proposed and why; and

(b)to make representations at a hearing (whether or not that person in fact attends).

(2) That restriction does not apply to making an interim behaviour order, but such an order has no effect unless the person to whom it is directed-

(a)is present when it is made; or

(b)is handed a document recording the order not more than 7 days after it is made.

(3) Where the court decides not to make, where it could-

(a)a football banning order;

(b)a parenting order, after a person under 16 is convicted of disobeying an anti-social behaviour order; or

(c)a drinking banning order,

the court must announce, at a hearing in public, the reasons for its decision.

[Note. The Acts listed in the note to rule 50.1 impose requirements specific to each different type of behaviour order. Not all allow the court to make an interim behaviour order.

See section 14A(3) of the Football Spectators Act 1989(516); section 8A(4) of the Crime and Disorder Act 1998(517); and section 6(4) of the Violent Crime Reduction Act 2006(518).]

Application for behaviour order: special rules

50.3.-(1) This rule applies where a prosecutor wants the court to make-

(a)an anti-social behaviour order; or

(b)a serious crime prevention order,

if the defendant is convicted.

(2) The prosecutor must serve a notice of intention to apply for such an order on-

(a)the court officer;

(b)the defendant against whom the prosecutor wants the court to make the order; and

(c)any person on whom the order would be likely to have a significant adverse effect,

as soon as practicable (without waiting for the verdict).

(3) The notice must be in the form set out in the Practice Direction and must-

(a)summarise the relevant facts;

(b)identify the evidence on which the prosecutor relies in support;

(c)attach any written statement that the prosecutor has not already served; and

(d)specify the order that the prosecutor wants the court to make.

(4) The defendant must then-

(a)serve written notice of any evidence on which the defendant relies on-

(i)the court officer, and

(ii)the prosecutor,

as soon as practicable (without waiting for the verdict); and

(b)in the notice, identify that evidence and attach any written statement that has not already been served.

(5) This rule does not apply to an application for an interim anti-social behaviour order.

[Note. Under section 8 of the Serious Crime Act 2007 a serious crime prevention order may be made only on an application by the Director of Public Prosecutions, the Director of Revenue and Customs Prosecutions, or the Director of the Serious Fraud Office. See also paragraphs 2, 7 and 13 of Schedule 2 to the 2007 Act.

If a party relies on hearsay evidence, see also rules 50.6, 50.7, and 50.8.]

Evidence to assist the court: special rules

50.4.-(1) This rule applies where the court indicates that it may make on its own initiative-

(a)a football banning order;

(b)a restraining order;

(c)an anti-social behaviour order; or

(d)a drinking banning order.

(2) A party who wants the court to take account of any particular evidence before making that decision must-

(a)serve notice in writing on-

(i)the court officer, and

(ii)every other party,

as soon as practicable (without waiting for the verdict); and

(b)in that notice identify that evidence and attach any written statement that has not already been served.

[Note. If a party relies on hearsay evidence, see also rules 50.6, 50.7, and 50.8.]

Application to vary or revoke behaviour order

50.5.-(1) The court may vary or revoke a behaviour order if-

(a)the legislation under which it is made allows the court to do so; and

(b)one of the following applies-

(i)the prosecutor,

(ii)the person to whom the order is directed,

(iii)any other person mentioned in the order,

(iv)the relevant authority or responsible officer,

(v)the relevant Chief Officer of Police, or

(vi)the Director of Public Prosecutions.

(2) A person applying under this rule must-

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

(i)what material circumstances have changed since the order was made, and

(ii)why the order should be varied or revoked as a result; and

(b)serve the application on-

(i)the court officer,

(ii)as appropriate, the prosecutor or defendant, and

(iii)any other person listed in paragraph (1)(b), if the court so directs.

(3) A party who wants the court to take account of any particular evidence before making its decision must, as soon as practicable-

(a)serve notice in writing on-

(i)the court officer,

(ii)as appropriate, the prosecutor or defendant, and

(iii)any other person listed in paragraph (1)(b) on whom the court directed the application to be served; and

(b)in that notice identify the evidence and attach any written statement that has not already been served.

(4) The court may decide an application under this rule with or without a hearing.

(5) But the court must not-

(a)dismiss an application under this rule unless the applicant has had an opportunity to make representations at a hearing (whether or not the applicant in fact attends); or

(b)allow an application under this rule unless everyone required to be served, by this rule or by the court, has had at least 14 days in which to make representations, including representations about whether there should be a hearing.

(6) The court officer must-

(a)serve the application on any person, if the court so directs; and

(b)give notice of any hearing to-

(i)the applicant, and

(ii)any person required to be served, by this rule or by the court.

[Note. The legislation that gives the court power to make a behaviour order may limit the circumstances in which it may be varied or revoked and may require a hearing.

If a party relies on hearsay evidence, see also rules 50.6, 50.7 and 50.8.]

Notice of hearsay evidence

50.6.-(1) A party who wants to introduce hearsay evidence must-

(a)serve a notice in writing on-

(i)the court officer, and

(ii)every other party directly affected; and

(b)in that notice-

(i)explain that it is a notice of hearsay evidence,

(ii)identify that evidence,

(iii)identify the person who made the statement which is hearsay, or explain why if that person is not identified, and

(iv)explain why that person will not be called to give oral evidence.

(2) A party may serve one notice under this rule in respect of more than one notice and more than one witness.

[Note. For the time within which to serve a notice of hearsay evidence, see rule 50.3(2) to (4), rule 50.4(2) and rule 50.5(3). See also the requirement in section 2 of the Civil Evidence Act 1995 for reasonable and practicable notice of a proposal to introduce hearsay evidence.

Rules 50.6, 50.7 and 50.8 broadly correspond with rules 3, 4 and 5 of The Magistrates' Courts (Hearsay Evidence in Civil Proceedings) Rules 1999(519), which apply in civil proceedings in magistrates' courts. Rule 3 of the 1999 Rules however includes a time limit, which may be varied by the court, or a justices' clerk, of 21 days before the date fixed for the hearing, for service of a hearsay notice.]

Cross-examination of maker of hearsay statement

50.7.-(1) This rule applies where a party wants the court's permission to cross-examine a person who made a statement which another party wants to introduce as hearsay.

(2) The party who wants to cross-examine that person must-

(a)apply in writing, with reasons, not more than 7 days after service of the notice of hearsay evidence; and

(b)serve the application on-

(i)the court officer,

(ii)the party who served the hearsay evidence notice, and

(iii)every party on whom the hearsay evidence notice was served.

(3) The court may decide an application under this rule with or without a hearing.

(4) But the court must not-

(a)dismiss an application under this rule unless the applicant has had an opportunity to make representations at a hearing (whether or not the applicant in fact attends); or

(b)allow an application under this rule unless everyone served with the application has had at least 7 days in which to make representations, including representations about whether there should be a hearing.

[Note. See also section 3 of the Civil Evidence Act 1995.]

Credibility and consistency of maker of hearsay statement

50.8.-(1) This rule applies where a party wants to challenge the credibility or consistency of a person who made a statement which another party wants to introduce as hearsay.

(2) The party who wants to challenge the credibility or consistency of that person must-

(a)serve a written notice of intention to do so on-

(i)the court officer, and

(ii)the party who served the notice of hearsay evidence

not more than 7 days after service of that hearsay evidence notice; and

(b)in the notice, identify any statement or other material on which that party relies.

(3) The party who served the hearsay notice-

(a)may call that person to give oral evidence instead; and

(b)if so, must serve a notice of intention to do so on-

(i)the court officer, and

(ii)every party on whom he served the hearsay notice

not more than 7 days after service of the notice under paragraph (2).

[Note. Section 5(2) of the Civil Evidence Act 1995 describes the procedure for challenging the credibility of the maker of a statement of which hearsay evidence is introduced. See also section 6 of that Act. The 1995 Act does not allow the introduction of evidence of a previous inconsistent statement otherwise than in accordance with sections 5, 6 and 7 of the Criminal Procedure Act 1865(520).]

Court's power to vary requirements under this Part

50.9. The court may-

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

(b)allow a notice or application to be given in a different form, or presented orally.

PART 51

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

PART 52ENFORCEMENT OF FINES AND OTHER ORDERS FOR PAYMENT

[Note. Part 18 contains rules about warrants for arrest, detention or imprisonment, including such warrants issued for failure to pay fines, etc.

Part 37 contains rules about the procedure on sentencing in a magistrates' court.

Part 42 contains rules about the exercise of a magistrates' court's powers to enforce an order made by another court.]

When this Part applies

52.1.-(1) This Part applies where a magistrates' court can enforce payment of-

(a)a fine, or a sum that legislation requires the court to treat as a fine; or

(b)any other sum that a court has ordered to be paid-

(i)on a conviction, or

(ii)on the forfeiture of a surety.

(2) Rules 52.7 to 52.9 apply where the court, or a fines officer, issues a warrant that requires someone to-

(a)take control of goods or money belonging to the defendant;

(b)remove and sell any such goods; and

(c)pay any such money, and any proceeds of such a sale, to the court officer towards payment of a sum to which this Part applies.

(3) In this Part-

(a)-�defendant' means anyone liable to pay a sum to which this Part applies;

(b)-�payment terms' means by when, and by what (if any) instalments, such a sum must be paid.

[Note. For the means by which a magistrates' court may enforce payment, see-

(a)Part 3 of the Magistrates' Courts Act 1980(521); and

(b)Schedule 5 to the Courts Act 2003(522) and The Fines Collection Regulations 2006(523).

Under that Schedule and those Regulations, some enforcement powers may be exercised by a fines officer.

In some legislation, including the 1980 and 2003 Acts, a warrant to which this Part applies is described as -�a warrant of distress'. On the coming into force of the Tribunals, Courts and Enforcement Act 2007(524), such a warrant will be described as -�a warrant of control'.]

Exercise of court's powers

52.2. The court must not exercise its enforcement powers unless-

(a)the court officer has served on the defendant any collection order or other notice of-

(i)the obligation to pay,

(ii)the payment terms, and

(iii)how and where the defendant must pay; and

(b)the defendant has failed to comply with the payment terms.

[Note. See section 76 of the Magistrates' Courts Act 1980(525); and paragraphs 12 and 13 of Schedule 5 to the Courts Act 2003(526).]

Duty to give receipt

52.3.-(1) This rule applies where the defendant makes a payment to-

(a)the court officer specified in an order or notice served under rule 52.2;

(b)another court officer;

(c)any-

(i)custodian of the defendant,

(ii)supervisor appointed to encourage the defendant to pay, or

(iii)responsible officer appointed under a community sentence or a suspended sentence of imprisonment; or

(d)a person executing a warrant to which rule 18.6 (warrants for arrest, detention or imprisonment that cease to have effect on payment) or this Part applies.

(2) The person receiving the payment must-

(a)give the defendant a receipt; and

(b)as soon as practicable transmit the payment to the court officer specified in an order or notice served under rule 52.2, if the recipient is not that court officer.

[Note. For the effect of payment to a person executing a warrant to which-

(a)rule 18.6 applies, see that rule and sections 79(527) and 125(1)(528) of the Magistrates' Courts Act 1980;

(b)this Part applies, see rule 52.8(5).

For the circumstances in which the court may appoint a person to supervise payment, see section 88 of the 1980 Act(529).]

Appeal against decision of fines officer

52.4.-(1) This rule applies where-

(a)a collection order is in force;

(b)a fines officer makes a decision under one of these paragraphs of Schedule 5 to the Courts Act 2003(530)-

(i)paragraph 22 (Application to fines officer for variation of order or attachment of earnings order, etc.),

(ii)paragraph 31(531) (Application to fines officer for variation of reserve terms), or

(iii)paragraph 37(532) (Functions of fines officer in relation to defaulters: referral or further steps notice); and

(c)the defendant wants to appeal against that decision.

(2) Unless the court otherwise directs, the defendant must-

(a)appeal in writing not more than 10 business days after the decision;

(b)serve the appeal on the court officer; and

(c)in the appeal-

(i)explain why a different decision should be made, and

(ii)specify the decision that the defendant proposes.

(3) Where the court determines an appeal-

(a)the general rule is that it will do so at a hearing; but

(b)it may do so without a hearing.

[Note. Under paragraph 12 of Schedule 5 to the Courts Act 2003, where a collection order is in force the court's powers to deal with the defendant's liability to pay the sum for which that order was made are subject to the provisions of that Schedule and to fines collection regulations.

For the circumstances in which a defendant may appeal against a decision to which this rule applies, see paragraphs 23, 32 and 37(9) of Schedule 5 to the 2003 Act(533). The time limit for appeal is prescribed by those paragraphs. It may be neither extended nor shortened.]

Application to reduce a fine or vary payment terms

52.5.-(1) This rule applies where-

(a)no collection order is in force; and

(b)the defendant wants the court to-

(i)reduce the amount of a fine, or

(ii)vary payment terms.

(2) Unless the court otherwise directs, the defendant must-

(a)apply in writing;

(b)serve the application on the court officer; and

(c)in the application, explain-

(i)what relevant circumstances have not yet been considered by the court, and

(ii)why the fine should be reduced, or the payment terms varied.

[Note. See sections 75(534), 85(535) and 85A(536) of the Magistrates' Courts Act 1980.]

Claim to avoid fine after penalty notice

52.6.-(1) This rule applies where-

(a)a chief officer of police serves on the magistrates' court officer a certificate registering, for enforcement as a fine, a sum payable by a defendant after failure to comply with a penalty notice; and

(b)the court or a fines officer enforces the fine.

(2) A defendant who claims not to be the person to whom the penalty notice was issued must, unless the court otherwise directs-

(a)make that claim in writing; and

(b)serve it on the court officer.

(3) The court officer must-

(a)notify the chief officer of police by whom the certificate was registered; and

(b)refer the case to the court.

(4) Where such a claim is made-

(a)the general rule is that the court will adjourn the enforcement for 28 days and fix a hearing; but

(b)the court may make a different order.

(5) At any such hearing, the chief officer of police must introduce any evidence to contradict the defendant's claim.

[Note. See section 10 of the Criminal Justice and Police Act 2001(537).

For the circumstances in which a sum may be registered for enforcement as a fine after failure to comply with a penalty notice, see sections 8 and 9 of the 2001 Act(538).]

Information to be included in a warrant to take goods, etc.

52.7.-(1) A warrant must identify-

(a)the person(s) to whom it is directed;

(b)the defendant against whom it was issued;

(c)the sum for which it was issued and the reason that sum is owed;

(d)the court or fines officer who issued it, unless that is otherwise recorded by the court officer; and

(e)the court office for the court or fines officer who issued it.

(2) A person to whom a warrant is directed must record on it the date and time at which it is received.

(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 or fines officer; and

(b)it contains enough information to identify that decision.

[Note. See sections 78(539) and 125ZA(540) of the Magistrates' Courts Act 1980.]

Execution of a warrant to take goods, etc.

52.8.-(1) A warrant may be executed by-

(a)any person to whom it is directed; or

(b)anyone authorised to do so by section 125(541) (warrants), 125A(542) (civilian enforcement officers) or 125B(543) (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-

(i)the order or decision that the warrant was issued to enforce,

(ii)the sum for which the warrant was issued, and

(iii)any extra sum payable in connection with the execution of the warrant;

(b)show the defendant the warrant, if that person has it;

(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; and

(d)clearly mark any goods that are taken under the warrant, unless that person removes those goods at once.

(3) These goods must not be taken under the warrant-

(a)clothes or bedding used by the defendant or by anyone living with the defendant;

(b)tools, books, vehicles or other equipment that the defendant needs to use in the defendant's employment, business or vocation, unless the defendant is a corporation.

(4) Unless the court otherwise directs, or the defendant otherwise agrees, if the person who executes the warrant takes household goods they must not be removed until the day of sale.

(5) The warrant no longer has effect if-

(a)there is paid to the person executing it the sum for which it was issued and any extra sum payable in connection with its execution;

(b)those sums are offered to, but refused by, that person; or

(c)that person-

(i)is shown a receipt given under rule 52.3 for the sum for which the warrant was issued, and

(ii)is paid any extra sum payable in connection with its execution.

[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(544), 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 which this Part applies, may be executed by a constable, even though it is not in that constable's possession at the time.]

Sale of goods taken under a warrant

52.9.-(1) Unless the court otherwise directs or the defendant otherwise agrees, goods taken under a warrant must be sold-

(a)at public auction; and

(b)as soon as reasonably practicable after the expiry of 5 business days from the date of execution of the warrant.

(2) After a sale, the person who executed the warrant must, as soon as reasonably practicable-

(a)collect the proceeds of sale;

(b)deduct any sum payable in connection with the execution of the warrant;

(c)pay the court officer specified in an order or notice served under rule 52.2 the sum for which the warrant was issued;

(d)pay any balance remaining to the defendant; and

(e)deliver an account of those deductions and payments to the court officer.

Financial penalties imposed in other European Union member States

52.10.-(1) This rule applies where the Lord Chancellor gives the court officer a request to enforce a financial penalty imposed in another European Union member State.

(2) The court officer must serve on the defendant-

(a)notice of the request for enforcement, and of its effect;

(b)a copy of-

(i)the certificate requesting enforcement, and

(ii)the decision requiring payment to which that certificate relates; and

(c)notice that the procedure set out in this rule applies.

(3) A defendant who wants the court to refuse enforcement must-

(a)serve notice of objection on the court officer;

(b)unless the court otherwise directs, serve that notice not more than 14 days after service of notice of the request; and

(c)in the notice of objection-

(i)identify each ground for refusal on which the defendant relies,

(ii)summarise any relevant facts not already included in the certificate and decision served with the notice of the request, and

(iii)identify any other document that the defendant thinks the court will need to determine the request (and serve any such document with the notice).

(4) The court-

(a)may determine a request for enforcement-

(i)at a hearing, which will be in public unless the court otherwise directs, or

(ii)without a hearing; but

(b)must not allow enforcement unless the defendant has had at least 14 days in which to serve notice of objection.

(5) Paragraphs (2) and (3) do not apply if, on receipt of the request, the court decides that a ground for refusal applies.

(6) The court officer must serve on the Lord Chancellor notice of the court's decision.

[Note. Under section 84 of the Criminal Justice and Immigration Act 2008(545)-

(a)the Lord Chancellor may receive-

(i)a certificate issued in another European Union member State, requesting enforcement of a financial penalty to which applies the Framework Decision of the Council of the European Union 2005/214/JHA, as amended by Council Framework Decision 2009/299/JHA, on the application of the principle of mutual recognition to financial penalties; and

(ii)the decision requiring payment of the penalty to which that certificate relates; and

(b)the Lord Chancellor must then give the court officer-

(i)that certificate and that decision, and

(ii)a notice stating whether the Lord Chancellor thinks that any of the grounds for refusal of the request apply, and giving reasons for that opinion.

Under section 85 of the 2008 Act-

(a)the court must then decide whether it is satisfied that any of the grounds for refusal of the request apply; and

(b)if the court is not so satisfied, then the decision requiring payment may be enforced as if the penalty concerned were a sum that the court itself had ordered to be paid on convicting the defendant.

The grounds for refusal are listed in Schedule 19 to the 2008 Act, paraphrasing the grounds set out in the Framework Decision.

See also sections 91 and 92 of the 2008 Act.]

PART 53

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

PART 54

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

PART 55ROAD TRAFFIC PENALTIES

[Note. Part 37 contains rules about the general procedure on sentencing in a magistrates' court.]

Application to remove a disqualification from driving

55.1.-(1) This rule applies where, on application by the defendant, the court can remove a disqualification from driving.

(2) A defendant who wants the court to exercise that power must-

(a)apply in writing, no earlier than the date on which the court can exercise the power;

(b)serve the application on the court officer; and

(c)in the application-

(i)specify the disqualification that the defendant wants the court to remove, and

(ii)explain why.

(3) The court officer must serve a copy of the application on the chief officer of police for the local justice area.

[Note. For the circumstances in which the court may remove a disqualification from driving imposed under section 34 or 35 of the Road Traffic Offenders Act 1988(546), see section 42 of the Act(547). The court may not consider an application made within 2 years of the disqualification, in any case; or, after that, before a specified period has expired.]

Information to be supplied on order for endorsement of driving record, etc.

55.2.-(1) This rule applies where the court-

(a)convicts the defendant of an offence involving obligatory endorsement, and orders there to be endorsed on the defendant's driving record and on any counterpart licence-

(i)particulars of the conviction,

(ii)particulars of any disqualification from driving that the court imposes, and

(iii)the penalty points to be attributed to the offence;

(b)disqualifies the defendant from driving for any other offence; or

(c)suspends or removes a disqualification from driving.

(2) The court officer must, as soon as practicable, serve on the Secretary of State notice that includes details of-

(a)where paragraph (1)(a) applies-

(i)the local justice area in which the court is acting,

(ii)the dates of conviction and sentence,

(iii)the offence, and the date on which it was committed,

(iv)the sentence, and

(v)the date of birth, and sex, of the defendant, where those details are available;

(b)where paragraph (1)(b) applies-

(i)the date and period of the disqualification,

(ii)the power exercised by the court;

(c)where paragraph (1)(c) applies-

(i)the date and period of the disqualification,

(ii)the date and terms of the order for its suspension or removal,

(iii)the power exercised by the court, and

(iv)where the court suspends the disqualification pending appeal, the court to which the defendant has appealed.

[Note. See sections 39(3), 42(5) and 44A of the Road Traffic Offenders Act 1988(548).

Under section 25 of the 1988 Act(549), the court may order a defendant to disclose his or her date of birth, and sex, where that is not apparent (for example, where the defendant is convicted in his or her absence). Under section 27 of the 1988 Act(550), and under sections 146(4) and 147(5) of the Powers of Criminal Courts (Sentencing) Act 2000(551), the court may order a defendant to produce his or her driving licence, if not already produced.

For the circumstances in which the court-

(a)must usually order endorsement, see sections 9, 44 and 96 of, and Schedule 2 to, the 1988 Act(552);

(b)may (and in some cases must) order disqualification from driving, see sections 26(553), 34(554), 35(555) and 36 of the 1988 Act; and sections 146 and 147 of the 2000 Act(556);

(c)may suspend a disqualification from driving pending appeal, see section 39 of the 1988 Act(557);

(d)may remove a disqualification from driving imposed under section 34 or 35 of the 1988 Act, see section 42 of the Act.]

Statutory declaration to avoid fine after fixed penalty notice

55.3.-(1) This rule applies where-

(a)a chief officer of police, or the Secretary of State, serves on the magistrates' court officer a certificate registering, for enforcement as a fine, a sum payable by a defendant after failure to comply with a fixed penalty notice;

(b)the court officer notifies the defendant of the registration; and

(c)the defendant makes a statutory declaration with the effect that-

(i)the fixed penalty notice, or any associated notice sent to the defendant as owner of the vehicle concerned, and

(ii)the registration and any enforcement proceedings

become void.

(2) The defendant must serve that statutory declaration not more than 21 days after service of notice of the registration, unless the court extends that time limit.

(3) The court officer must-

(a)serve a copy of the statutory declaration on the person by whom the certificate was registered;

(b)cancel any endorsement on the defendant's driving record and on any counterpart licence; and

(c)notify the Secretary of State of any such cancellation.

[Note. See sections 72(1), (6), (6A), 73(1) and 74(2) of the Road Traffic Offenders Act 1988(558).

For the circumstances in which-

(a)a sum may be registered for enforcement as a fine after failure to comply with a fixed penalty notice, see sections 54(559), 55, 62(560), 63(561), 64, 70(562) and 71(563) of the 1988 Act;

(b)the registration may become void on the making of a statutory declaration by the defendant, see sections 72(564) and 73(565) of the 1988 Act.]

Application for declaration about a course or programme certificate decision

55.4.-(1) This rule applies where the court can declare unjustified-

(a)a course provider's failure or refusal to give a certificate of the defendant's satisfactory completion of an approved course; or

(b)a programme provider's giving of a certificate of the defendant's failure fully to participate in an approved programme.

(2) A defendant who wants the court to exercise that power must-

(a)apply in writing, not more than 28 days after-

(i)the date by which the defendant was required to complete the course, or

(ii)the giving of the certificate of failure fully to participate in the programme;

(b)serve the application on the court officer; and

(c)in the application, specify the course or programme and explain (as applicable)-

(i)that the course provider has failed to give a certificate,

(ii)where the course provider has refused to give a certificate, why the defendant disagrees with the reasons for that decision, or

(iii)where the programme provider has given a certificate, why the defendant disagrees with the reasons for that decision.

(3) The court officer must serve a copy of the application on the course or programme provider.

(4) The court must not determine the application unless the defendant, and the course or programme provider, each has had an opportunity to make representations at a hearing (whether or not either in fact attends).

[Note. For the circumstances in which the court may reduce a road traffic penalty on condition that the defendant attend an approved course, or take part in an approved programme, see sections 30A(566), 34A(567) and 34D(568) of the Road Traffic Offenders Act 1988.

Under sections 30B(569), 34B(570) and 34E(571) of the 1988 Act, the court that made the order, or the defendant's local magistrates' court, on application by the defendant may review a course or programme provider's decision that the defendant has not completed the course satisfactorily, or has not participated fully in the programme.]

Appeal against recognition of foreign driving disqualification

55.5.-(1) This rule applies where-

(a)a minister gives a disqualification notice under section 57 of the Crime (International Co-operation) Act 2003(572); and

(b)the person to whom it is given wants to appeal under section 59 of the Act(573) to a magistrates' court.

(2) That person (-�the appellant') must serve an appeal notice on-

(a)the court officer, at a magistrates' court in the local justice area in which the appellant lives; and

(b)the minister, at the address given in the disqualification notice.

(3) The appellant must serve the appeal notice within the period for which section 59 of the 2003 Act provides.

(4) The appeal notice must-

(a)attach a copy of the disqualification notice;

(b)explain which of the conditions in section 56 of the 2003 Act(574) is not met, and why section 57 of the Act therefore does not apply; and

(c)include any application to suspend the disqualification, under section 60 of the Act(575).

(5) The minister may serve a respondent's notice, and must do so if-

(a)the minister wants to make representations to the court; or

(b)the court so directs.

(6) The minister must-

(a)unless the court otherwise directs, serve any such respondent's notice not more than 14 days after-

(i)the appellant serves the appeal notice, or

(ii)a direction to do so;

(b)in any such respondent's notice-

(i)identify the grounds of opposition on which the minister relies,

(ii)summarise any relevant facts not already included in the disqualification and appeal notices, and

(iii)identify any other document that the minister thinks the court will need to decide the appeal (and serve any such document with the notice).

(7) Where the court determines an appeal-

(a)the general rule is that it will do so at a hearing (which will be in public, unless the court otherwise directs); but

(b)it may do so without a hearing.

(8) The court officer must serve on the minister-

(a)notice of the outcome of the appeal;

(b)notice of any suspension of the disqualification; and

(c)the appellant's driving licence, if surrendered to the court officer.

[Note. Section 56 of the Crime (International Co-operation) Act 2003 sets out the conditions for recognition in the United Kingdom of a foreign driving disqualification, and provides that section 57 of the Act applies where they are met. Under section 57, the appropriate minister may, and in some cases must, give the person concerned notice that he or she is disqualified in the UK, too, and for what period.

Under section 59 of the 2003 Act, that person may appeal to a magistrates' court. If the court is satisfied that section 57 of the Act does not apply in that person's case, the court must allow the appeal and notify the minister. Otherwise, it must dismiss the appeal.

The time limit for appeal under section 59 of the 2003 Act is the end of the period of 21 days beginning with the day on which the minister gives the notice under section 57. That period may be neither extended nor shortened.

Under section 60 of the 2003 Act, the court may suspend the disqualification, on such terms as it thinks fit.

Under section 63 of the 2003 Act(576), it is an offence for a person to whom the minister gives a notice under section 57 not to surrender any licence that he or she holds, within the same period as for an appeal.]

PART 56CONFISCATION PROCEEDINGS UNDER THE CRIMINAL JUSTICE ACT 1988 AND THE DRUG TRAFFICKING ACT 1994

Statements, etc. relevant to making confiscation orders

56.1.-(1) Where a prosecutor or defendant-�

(a)tenders to a magistrates' court any statement or other document under section 73 of the Criminal Justice Act 1988(577) in any proceedings in respect of an offence listed in Schedule 4 to that Act; or

(b)tenders to the Crown Court any statement or other document under section 11 of the Drug Trafficking Act 1994(578) or section 73 of the 1988 Act in any proceedings in respect of a drug trafficking offence or in respect of an offence to which Part VI of the 1988 Act applies,

he must serve a copy as soon as practicable on the defendant or the prosecutor, as the case may be.

(2) Any statement tendered by the prosecutor to the magistrates' court under section 73 of the 1988 Act or to the Crown Court under section 11(1) of the 1994 Act or section 73(1A) of the 1988 Act shall include the following particulars-

(a)the name of the defendant;

(b)the name of the person by whom the statement is made and the date on which it was made;

(c)where the statement is not tendered immediately after the defendant has been convicted, the date on which and the place where the relevant conviction occurred; and

(d)such information known to the prosecutor as is relevant to the determination as to whether or not the defendant has benefited from drug trafficking or relevant criminal conduct and to the assessment of the value of his proceeds of drug trafficking or, as the case may be, benefit from relevant criminal conduct.

(3) Where, in accordance with section 11(7) of the 1994 Act or section 73(1C) of the 1988 Act, the defendant indicates the extent to which he accepts any allegation contained within the prosecutor's statement, if he indicates the same in writing to the prosecutor, he must serve a copy of that reply on the court officer.

(4) Expressions used in this rule shall have the same meanings as in the 1994 Act or, where appropriate, the 1988 Act.

[Note. The relevant provisions of the 1988 and 1994 Acts were repealed on 24th March 2003, but they continue to have effect in respect of proceedings for offences committed before that date.]

Postponed determinations

56.2.-(1) Where an application is made by the defendant or the prosecutor -�

(a)to a magistrates' court under section 72A(5)(a) of the Criminal Justice Act 1988(579) asking the court to exercise its powers under section 72A(4) of that Act; or

(b)to the Crown Court under section 3(5)(a) of the Drug Trafficking Act 1994(580) asking the Court to exercise its powers under section 3(4) of that Act, or under section 72A(5)(a) of the 1988 Act asking the court to exercise its powers under section 72A(4) of the 1988 Act,

the application must be made in writing and a copy must be served on the prosecutor or the defendant, as the case may be.

(2) A party served with a copy of an application under paragraph (1) shall, within 28 days of the date of service, notify the applicant and the court officer, in writing, whether or not he proposes to oppose the application, giving his reasons for any opposition.

(3) After the expiry of the period referred to in paragraph (2), the court shall determine whether an application under paragraph (1) is to be dealt with-

(a)without a hearing; or

(b)at a hearing at which the parties may be represented.

[Note. The relevant provisions of the 1988 and 1994 Acts were repealed on 24th March 2003, but they continue to have effect in respect of proceedings for offences committed before that date.]

Confiscation orders - revised assessments

56.3.-(1) Where the prosecutor makes an application under section 13, 14 or 15 of the Drug Trafficking Act 1994(581) or section 74A, 74B or 74C of the Criminal Justice Act 1988(582), the application must be in writing and a copy must be served on the defendant.

(2) The application must include the following particulars-

(a)the name of the defendant;

(b)the date on which and the place where any relevant conviction occurred;

(c)the date on which and the place where any relevant confiscation order was made or, as the case may be, varied;

(d)the grounds on which the application is made; and

(e)an indication of the evidence available to support the application.

[Note. The relevant provisions of the 1988 and 1994 Acts were repealed on 24th March 2003, but they continue to have effect in respect of proceedings for offences committed before that date.]

Application to the Crown Court to discharge or vary order to make material available

56.4.-(1) Where an order under section 93H of the Criminal Justice Act 1988(583) (order to make material available) or section 55 of the Drug Trafficking Act 1994(584) (order to make material available) has been made by the Crown Court, any person affected by it may apply in writing to the court officer for the order to be discharged or varied, and on hearing such an application a circuit judge may discharge the order or make such variations to it as he thinks fit.

(2) Subject to paragraph (3), where a person proposes to make an application under paragraph (1) for the discharge or variation of an order, he shall give a copy of the application, not later than 48 hours before the making of the application-

(a)to a constable at the police station specified in the order; or

(b)to the office of the appropriate officer who made the application, as specified in the order,

in either case together with a notice indicating the time and place at which the application for discharge or variation is to be made.

(3) A circuit judge may direct that paragraph (2) need not be complied with if he is satisfied that the person making the application has good reason to seek a discharge or variation of the order as soon as possible and it is not practicable to comply with that paragraph.

(4) In this rule:

-�constable' includes a person commissioned by the Commissioners for Her Majesty's Revenue and Customs;

-�police station' includes a place for the time being occupied by Her Majesty's Revenue and Customs.

[Note. The relevant provision of the 1988 Act was repealed on 24th February 2003, but it continues to have effect in respect of proceedings for offences committed before that date.]

Application to the Crown Court for increase in term of imprisonment in default of payment

56.5.-(1) This rule applies to applications made, or that have effect as made, to the Crown Court under section 10 of the Drug Trafficking Act 1994(585) and section 75A of the Criminal Justice Act 1988(586) (interest on sums unpaid under confiscation orders).

(2) Notice of an application to which this rule applies to increase the term of imprisonment or detention fixed in default of payment of a confiscation order by a person (-�the defendant') shall be made by the prosecutor in writing to the court officer.

(3) A notice under paragraph (2) shall-

(a)state the name and address of the defendant;

(b)specify the grounds for the application;

(c)give details of the enforcement measures taken, if any; and

(d)include a copy of the confiscation order.

(4) On receiving a notice under paragraph (2), the court officer shall-

(a)forthwith send to the defendant and the magistrates' court required to enforce payment of the confiscation order under section 140(1) of the Powers of Criminal Courts (Sentencing) Act 2000(587), a copy of the said notice; and

(b)notify in writing the applicant and the defendant of the date, time and place appointed for the hearing of the application.

(5) Where the Crown Court makes an order pursuant to an application mentioned in paragraph (1) above, the court officer shall send forthwith a copy of the order-

(a)to the applicant;

(b)to the defendant;

(c)where the defendant is at the time of the making of the order in custody, to the person having custody of him; and

(d)to the magistrates' court mentioned in paragraph (4)(a).

[Note. The relevant provisions of the 1988 and 1994 Acts were repealed on 24th March 2003, but they continue to have effect in respect of proceedings for offences committed before that date.]

Drug trafficking -� compensation on acquittal in the Crown Court

56.6. Where a Crown Court cancels a confiscation order under section 22(2) of the Drug Trafficking Act 1994(588), the court officer shall serve notice to that effect on the High Court and on the magistrates' court which has responsibility for enforcing the order.

[Note. The relevant provision of the 1994 Act was repealed on 24th March 2003, but it continues to have effect in respect of proceedings for offences committed before that date.]

PART 57PROCEEDS OF CRIME ACT 2002: RULES APPLICABLE TO ALL PROCEEDINGS

Interpretation

57.1. In this Part and in Parts 58, 59, 60 and 61:

-�business day' means any day other than a Saturday, Sunday, Christmas Day or Good Friday, or a bank holiday under the Banking and Financial Dealings Act 1971(589), in England and Wales;

-�document' means anything in which information of any description is recorded;

-�hearsay evidence' means evidence consisting of hearsay within the meaning of section 1(2) of the Civil Evidence Act 1995(590);

-�restraint proceedings' means proceedings under sections 42 and 58(2) and (3) of the Proceeds of Crime Act 2002(591);

-�receivership proceedings' means proceedings under sections 48, 49, 50, 51, 54(4), 59(2) and (3), 62 and 63 of the 2002 Act(592);

-�witness statement' means a written statement signed by a person which contains the evidence, and only that evidence, which that person would be allowed to give orally; and

words and expressions used have the same meaning as in Part 2 of the 2002 Act.

Calculation of time

57.2.-(1) This rule shows how to calculate any period of time for doing any act which is specified by this Part and Parts 58, 59, 60 and 61 for the purposes of any proceedings under Part 2 of the Proceeds of Crime Act 2002 or by an order of the Crown Court in restraint proceedings or receivership proceedings.

(2) A period of time expressed as a number of days shall be computed as clear days.

(3) In this rule -�clear days' means that in computing the number of days-

(a)the day on which the period begins; and

(b)if the end of the period is defined by reference to an event, the day on which that event occurs,

are not included.

(4) Where the specified period is five days or less and includes a day which is not a business day that day does not count.

Court office closed

57.3. When the period specified by this Part or Parts 58, 59, 60 and 61, or by an order of the Crown Court under Part 2 of the Proceeds of Crime Act 2002, for doing any act at the court office falls on a day on which the office is closed, that act shall be in time if done on the next day on which the court office is open.

Application for registration of Scottish or Northern Ireland order

57.4.-(1) This rule applies to an application for registration of an order under article 6 of the Proceeds of Crime Act 2002 (Enforcement in different parts of the United Kingdom) Order 2002(593).

(2) The application may be made without notice.

(3) The application must be in writing and may be supported by a witness statement which must-

(a)exhibit the order or a certified copy of the order; and

(b)to the best of the witness's ability, give full details of the realisable property located in England and Wales in respect of which the order was made and specify the person holding that realisable property.

(4) If the court registers the order, the applicant must serve notice of the registration on-

(a)any person who holds realisable property to which the order applies; and

(b)any other person whom the applicant knows to be affected by the order.

(5) The permission of the Crown Court under rule 57.13 is not required to serve the notice outside England and Wales.

Application to vary or set aside registration

57.5.-(1) An application to vary or set aside registration of an order under article 6 of the Proceeds of Crime Act 2002 (Enforcement in different parts of the United Kingdom) Order 2002 may be made to the Crown Court by-

(a)any person who holds realisable property to which the order applies; and

(b)any other person affected by the order.

(2) The application must be in writing and may be supported by a witness statement.

(3) The application and any witness statement must be lodged with the Crown Court.

(4) The application must be served on the person who applied for registration at least seven days before the date fixed by the court for hearing the application, unless the Crown Court specifies a shorter period.

(5) No property in England and Wales may be realised in pursuance of the order before the Crown Court has decided the application.

Register of orders

57.6.-(1) The Crown Court must keep, under the direction of the Lord Chancellor, a register of the orders registered under article 6 of the Proceeds of Crime Act 2002 (Enforcement in different parts of the United Kingdom) Order 2002.

(2) The register must include details of any variation or setting aside of a registration under rule 57.5 and of any execution issued on a registered order.

(3) If the person who applied for registration of an order which is subsequently registered notifies the Crown Court that the court which made the order has varied or discharged the order, details of the variation or discharge, as the case may be, must be entered in the register.

Statements of truth

57.7.-(1) Any witness statement required to be served by this Part or by Parts 58, 59, 60 or 61 must be verified by a statement of truth contained in the witness statement.

(2) A statement of truth is a declaration by the person making the witness statement to the effect that the witness statement is true to the best of his knowledge and belief and that he made the statement knowing that, if it were tendered in evidence, he would be liable to prosecution if he wilfully stated in it anything which he knew to be false or did not believe to be true.

(3) The statement of truth must be signed by the person making the witness statement.

(4) If the person making the witness statement fails to verify the witness statement by a statement of truth, the Crown Court may direct that it shall not be admissible as evidence.

Use of witness statements for other purposes

57.8.-(1) Except as provided by this rule, a witness statement served in proceedings under Part 2 of the Proceeds of Crime Act 2002 may be used only for the purpose of the proceedings in which it is served.

(2) Paragraph (1) does not apply if and to the extent that-

(a)the witness gives consent in writing to some other use of it;

(b)the Crown Court gives permission for some other use; or

(c)the witness statement has been put in evidence at a hearing held in public.

Expert evidence

57.9.-(1) A party to proceedings under Part 2 of the Proceeds of Crime Act 2002 who wishes to adduce expert evidence (whether of fact or opinion) in the proceedings must, as soon as practicable-

(a)serve on the other parties a statement in writing of any finding or opinion which he proposes to adduce by way of such evidence; and

(b)serve on any party who requests it in writing, a copy of (or if it appears to the party proposing to adduce the evidence to be more practicable, a reasonable opportunity to examine)-

(i)the record of any observation, test, calculation or other procedure on which the finding or opinion is based, and

(ii)any document or other thing or substance in respect of which the observation, test, calculation or other procedure mentioned in paragraph (1)(b)(i) has been carried out.

(c)A party may serve notice in writing waiving his right to be served with any of the matters mentioned in paragraph (1) and, in particular, may agree that the statement mentioned in paragraph (1)(a) may be given to him orally and not served in writing.

(d)If a party who wishes to adduce expert evidence in proceedings under Part 2 of the 2002 Act fails to comply with this rule he may not adduce that evidence in those proceedings without the leave of the court, except where rule 57.10 applies.

Exceptions to procedure for expert evidence

57.10.-(1) If a party has reasonable grounds for believing that the disclosure of any evidence in compliance with rule 57.9 might lead to the intimidation, or attempted intimidation, of any person on whose evidence he intends to rely in the proceedings, or otherwise to the course of justice being interfered with, he shall not be obliged to comply with those requirements in relation to that evidence, unless the Crown Court orders otherwise.

(2) Where, in accordance with paragraph (1), a party considers that he is not obliged to comply with the requirements imposed by rule 57.9 with regard to any evidence in relation to any other party, he must serve notice in writing on that party stating-

(a)that the evidence is being withheld; and

(b)the reasons for withholding the evidence.

Service of documents

57.11.-(1) Part 4 and rule 32.1 (notice required to accompany process served outside the United Kingdom and translations) shall not apply in restraint proceedings and receivership proceedings.

(2) Where this Part or Parts 58, 59, 60 or 61 requires service of a document, then, unless the Crown Court directs otherwise, the document may be served by any of the following methods-

(a)in all cases, by delivering the document personally to the party to be served;

(b)if no solicitor is acting for the party to be served by delivering the document at, or by sending it by first class post to, his residence or his last-known residence; or

(c)if a solicitor is acting for the party to be served-

(i)by delivering the document at, or sending it by first class post to, the solicitor's business address, or

(ii)where the solicitor's business address includes a numbered box at a document exchange, by leaving the document at that document exchange or at a document exchange which transmits documents on every business day to that document exchange, or

(iii)if the solicitor has indicated that he is willing to accept service by facsimile transmission, by sending a legible copy of the document by facsimile transmission to the solicitor's office.

(3) A document shall, unless the contrary is proved, be deemed to have been served-

(a)in the case of service by first class post, on the second business day after posting;

(b)in the case of service in accordance with paragraph (2)(c)(ii), on the second business day after the day on which it is left at the document exchange; and

(c)in the case of service in accordance with paragraph (2)(c)(iii), where it is transmitted on a business day before 4 p.m., on that day and in any other case, on the next business day.

(4) An order made in restraint proceedings or receivership proceedings may be enforced against the defendant or any other person affected by it notwithstanding that service of a copy of the order has not been effected in accordance with this rule if the Crown Court is satisfied that the person had notice of the order by being present when the order was made.

Service by an alternative method

57.12.-(1) Where it appears to the Crown Court that there is a good reason to authorise service by a method not otherwise permitted by rule 57.11, the court may make an order permitting service by an alternative method.

(2) An application for an order permitting service by an alternative method-

(a)must be supported by evidence; and

(b)may be made without notice.

(3) An order permitting service by an alternative method must specify-

(a)the method of service; and

(b)the date when the document will be deemed to be served.

Service outside the jurisdiction

57.13.-(1) Where this Part requires a document to be served on someone who is outside England and Wales, it may be served outside England and Wales with the permission of the Crown Court.

(2) Where a document is to be served outside England and Wales it may be served by any method permitted by the law of the country in which it is to be served.

(3) Nothing in this rule or in any court order shall authorise or require any person to do anything in the country where the document is to be served which is against the law of that country.

(4) Where this Part requires a document to be served a certain period of time before the date of a hearing and the recipient does not appear at the hearing, the hearing must not take place unless the Crown Court is satisfied that the document has been duly served.

Certificates of service

57.14.-(1) Where this Part requires that the applicant for an order in restraint proceedings or receivership proceedings serve a document on another person, the applicant must lodge a certificate of service with the Crown Court within seven days of service of the document.

(2) The certificate must state-

(a)the method of service;

(b)the date of service; and

(c)if the document is served under rule 57.12, such other information as the court may require when making the order permitting service by an alternative method.

(3) Where a document is to be served by the Crown Court in restraint proceedings and receivership proceedings and the court is unable to serve it, the court must send a notice of non-service stating the method attempted to the party who requested service.

External requests and orders

57.15.-(1) The rules in this Part and in Parts 59 to 61 and 71 to 73 apply with the necessary modifications to proceedings under The Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005(594) in the same way that they apply to corresponding proceedings under Part 2 of the Proceeds of Crime Act 2002(595).

(2) This table shows how provisions of the 2005 Order correspond with provisions of the 2002 Act.

PART 58PROCEEDS OF CRIME ACT 2002: RULES APPLICABLE ONLY TO CONFISCATION PROCEEDINGS

Statements in connection with confiscation orders

58.1.-(1) When the prosecutor is required, under section 16 of the Proceeds of Crime Act 2002(596), to give a statement to the Crown Court, the prosecutor must also, as soon as practicable, serve a copy of the statement on the defendant.

(2) Any statement given to the Crown Court by the prosecutor under section 16 of the 2002 Act must, in addition to the information required by the 2002 Act, include the following information-

(a)the name of the defendant;

(b)the name of the person by whom the statement is made and the date on which it is made; and

(c)where the statement is not given to the Crown Court immediately after the defendant has been convicted, the date on which and the place where the relevant conviction occurred.

(3) Where, under section 17 of the 2002 Act, the Crown Court orders the defendant to indicate the extent to which he accepts each allegation in a statement given by the prosecutor, the defendant must indicate this in writing to the prosecutor and must give a copy to the Crown Court.

(4) Where the Crown Court orders the defendant to give to it any information under section 18 of the 2002 Act, the defendant must provide the information in writing and must, as soon as practicable, serve a copy of it on the prosecutor.

Postponement of confiscation proceedings

58.2. The Crown Court may grant a postponement under section 14(1)(b) of the Proceeds of Crime Act 2002 without a hearing.

Application for reconsideration

58.3.-(1) This rule applies where the prosecutor makes an application under section 19, 20 or 21 of the Proceeds of Crime Act 2002(597).

(2) The application must be in writing and give details of-

(a)the name of the defendant;

(b)the date on which and the place where any relevant conviction occurred;

(c)the date on which and the place where any relevant confiscation order was made or varied;

(d)the grounds for the application; and

(e)an indication of the evidence available to support the application.

(3) The application must be lodged with the Crown Court.

(4) The application must be served on the defendant at least seven days before the date fixed by the court for hearing the application, unless the Crown Court specifies a shorter period.

Application for new calculation of available amount

58.4.-(1) This rule applies where the prosecutor or a receiver makes an application under section 22 of the Proceeds of Crime Act 2002(598) for a new calculation of the available amount.

(2) The application must be in writing and may be supported by a witness statement.

(3) The application and any witness statement must be lodged with the Crown Court.

(4) The application and any witness statement must be served on-

(a)the defendant;

(b)the receiver, if the prosecutor is making the application and a receiver has been appointed under section 50 of the 2002 Act; and

(c)the prosecutor, if the receiver is making the application,

at least seven days before the date fixed by the court for hearing the application, unless the Crown Court specifies a shorter period.

Variation of confiscation order due to inadequacy of available amount

58.5.-(1) This rule applies where the defendant or a receiver makes an application under section 23 of the Proceeds of Crime Act 2002(599) for the variation of a confiscation order.

(2) The application must be in writing and may be supported by a witness statement.

(3) The application and any witness statement must be lodged with the Crown Court.

(4) The application and any witness statement must be served on-

(a)the prosecutor;

(b)the defendant, if the receiver is making the application; and

(c)the receiver, if the defendant is making the application and a receiver has been appointed under section 50 of the 2002 Act,

at least seven days before the date fixed by the court for hearing the application, unless the Crown Court specifies a shorter period.

Application by magistrates' court officer to discharge confiscation order

58.6.-(1) This rule applies where a magistrates' court officer makes an application under section 24 or 25 of the Proceeds of Crime Act 2002(600) for the discharge of a confiscation order.

(2) The application must be in writing and give details of-

(a)the confiscation order;

(b)the amount outstanding under the order; and

(c)the grounds for the application.

(3) The application must be served on-

(a)the defendant;

(b)the prosecutor; and

(c)any receiver appointed under section 50 of the 2002 Act.

(4) The Crown Court may determine the application without a hearing unless a person listed in paragraph (3) indicates, within seven days after the application was served on him, that he would like to make representations.

(5) If the Crown Court makes an order discharging the confiscation order, the court must, at once, send a copy of the order to-

(a)the magistrates' court officer who applied for the order;

(b)the defendant;

(c)the prosecutor; and

(d)any receiver appointed under section 50 of the 2002 Act.

Application for variation of confiscation order made against an absconder

58.7.-(1) This rule applies where the defendant makes an application under section 29 of the Proceeds of Crime Act 2002 for the variation of a confiscation order made against an absconder.

(2) The application must be in writing and supported by a witness statement which must give details of-

(a)the confiscation order made against an absconder under section 6 of the 2002 Act as applied by section 28 of the 2002 Act;

(b)the circumstances in which the defendant ceased to be an absconder;

(c)the defendant's conviction of the offence or offences concerned; and

(d)the reason why he believes the amount required to be paid under the confiscation order was too large.

(3) The application and witness statement must be lodged with the Crown Court.

(4) The application and witness statement must be served on the prosecutor at least seven days before the date fixed by the court for hearing the application, unless the Crown Court specifies a shorter period.

Application for discharge of confiscation order made against an absconder

58.8.-(1) This rule applies if the defendant makes an application under section 30 of the Proceeds of Crime Act 2002 for the discharge of a confiscation order.

(2) The application must be in writing and supported by a witness statement which must give details of-

(a)the confiscation order made under section 28 of the 2002 Act;

(b)the date on which the defendant ceased to be an absconder;

(c)the acquittal of the defendant if he has been acquitted of the offence concerned; and

(d)if the defendant has not been acquitted of the offence concerned-

(i)the date on which the defendant ceased to be an absconder,

(ii)the date on which the proceedings taken against the defendant were instituted and a summary of steps taken in the proceedings since then, and

(iii)any indication given by the prosecutor that he does not intend to proceed against the defendant.

(3) The application and witness statement must be lodged with the Crown Court.

(4) The application and witness statement must be served on the prosecutor at least seven days before the date fixed by the court for hearing the application, unless the Crown Court specifies a shorter period.

(5) If the Crown Court orders the discharge of the confiscation order, the court must serve notice on the magistrates' court responsible for enforcing the order.

Application for increase in term of imprisonment in default

58.9.-(1) This rule applies where the prosecutor makes an application under section 39(5) of the Proceeds of Crime Act 2002(601) to increase the term of imprisonment in default of payment of a confiscation order.

(2) The application must be made in writing and give details of-

(a)the name and address of the defendant;

(b)the confiscation order;

(c)the grounds for the application; and

(d)the enforcement measures taken, if any.

(3) On receipt of the application, the court must-

(a)at once, send to the defendant and the magistrates' court responsible for enforcing the order, a copy of the application; and

(b)fix a time, date and place for the hearing and notify the applicant and the defendant of that time, date and place.

(4) If the Crown Court makes an order increasing the term of imprisonment in default, the court must, at once, send a copy of the order to-

(a)the applicant;

(b)the defendant;

(c)where the defendant is in custody at the time of the making of the order, the person having custody of the defendant; and

(d)the magistrates' court responsible for enforcing the order.

Compensation -� general

58.10.-(1) This rule applies to an application for compensation under section 72 of the Proceeds of Crime Act 2002.

(2) The application must be in writing and may be supported by a witness statement.

(3) The application and any witness statement must be lodged with the Crown Court.

(4) The application and any witness statement must be served on-

(a)the person alleged to be in default; and

(b)the person or authority by whom the compensation would be payable under section 72(9) or 302(7A)(602) of the 2002 Act (or if the compensation is payable out of a police fund under section 72(9)(a) or 302(7A), the chief officer of the police force concerned),

at least seven days before the date fixed by the court for hearing the application, unless the Crown Court directs otherwise.

Compensation -� confiscation order made against absconder

58.11.-(1) This rule applies to an application for compensation under section 73 of the Proceeds of Crime Act 2002.

(2) The application must be in writing and supported by a witness statement which must give details of-

(a)the confiscation order made under section 28 of the 2002 Act;

(b)the variation or discharge of the confiscation order under section 29 or 30 of the 2002 Act;

(c)the realisable property to which the application relates; and

(d)the loss suffered by the applicant as a result of the confiscation order.

(3) The application and witness statement must be lodged with the Crown Court.

(4) The application and witness statement must be served on the prosecutor at least seven days before the date fixed by the court for hearing the application, unless the Crown Court specifies a shorter period.

Payment of money in bank or building society account in satisfaction of confiscation order

58.12.-(1) An order under section 67 of the Proceeds of Crime Act 2002(603) requiring a bank or building society to pay money to a magistrates' court officer (-�a payment order') shall-

(a)be directed to the bank or building society in respect of which the payment order is made;

(b)name the person against whom the confiscation order has been made;

(c)state the amount which remains to be paid under the confiscation order;

(d)state the name and address of the branch at which the account in which the money ordered to be paid is held and the sort code of that branch, if the sort code is known;

(e)state the name in which the account in which the money ordered to be paid is held and the account number of that account, if the account number is known;

(f)state the amount which the bank or building society is required to pay to the court officer under the payment order;

(g)give the name and address of the court officer to whom payment is to be made; and

(h)require the bank or building society to make payment within a period of seven days beginning on the day on which the payment order is made, unless it appears to the court that a longer or shorter period would be appropriate in the particular circumstances.

(2) The payment order shall be served on the bank or building society in respect of which it is made by leaving it at, or sending it by first class post to, the principal office of the bank or building society.

(3) A payment order which is served by first class post shall, unless the contrary is proved, be deemed to have been served on the second business day after posting.

(4) In this rule -�confiscation order' has the meaning given to it by section 88(6) of the Proceeds of Crime Act 2002.

PART 59PROCEEDS OF CRIME ACT 2002: RULES APPLICABLE ONLY TO RESTRAINT PROCEEDINGS

Application for restraint order or ancillary order

59.1.-(1) This rule applies where the prosecutor, or an accredited financial investigator, makes an application under section 42 of the Proceeds of Crime Act 2002(604) for-

(a)a restraint order, under section 41(1) of the 2002 Act; or

(b)an ancillary order, under section 41(7) of that Act, for the purpose of ensuring that a restraint order is effective.

(2) The application may be made without notice if the application is urgent or if there are reasonable grounds for believing that giving notice would cause the dissipation of realisable property which is the subject of the application.

(3) An application for a restraint order must be in writing and supported by a witness statement which must-

(a)give the grounds for the application;

(b)to the best of the witness' ability, give full details of the realisable property in respect of which the applicant is seeking the order and specify the person holding that realisable property;

(c)include the proposed terms of the order.

(4) An application for an ancillary order must be in writing and supported by a witness statement which must-

(a)give the grounds for, and full details of, the application;

(b)include, if appropriate-

(i)any request for an order for disclosure of documents to which rule 61.9 applies (rules applicable to restraint and receivership proceedings: disclosure and inspection of documents),

(ii)the identity of any person whom the applicant wants the court to examine about the extent or whereabouts of realisable property,

(iii)a list of the main questions that the applicant wants to ask any such person, and

(iv)a list of any documents to which the applicant wants to refer such a person; and

(c)include the proposed terms of the order.

(5) An application for a restraint order and an application for an ancillary order may (but need not) be made at the same time and contained in the same documents.

(6) An application by an accredited financial investigator must include a statement that, under section 68 of the 2002 Act(605), the applicant has authority to apply.

Restraint and ancillary orders

59.2.-(1) The Crown Court may make a restraint order subject to exceptions, including, but not limited to, exceptions for reasonable living expenses and reasonable legal expenses, and for the purpose of enabling any person to carry on any trade, business or occupation.

(2) But the Crown Court must not make an exception for legal expenses where this is prohibited by section 41(4) of the Proceeds of Crime Act 2002.

(3) An exception to a restraint order may be made subject to conditions.

(4) The Crown Court must not require the applicant for a restraint order to give any undertaking relating to damages sustained as a result of the restraint order by a person who is prohibited from dealing with realisable property by the restraint order.

(5) The Crown Court may require the applicant for a restraint order to give an undertaking to pay the reasonable expenses of any person, other than a person who is prohibited from dealing with realisable property by the restraint order, which are incurred in complying with the restraint order.

(6) An order must include a statement that disobedience of the order, either by a person to whom the order is addressed, or by another person, may be contempt of court and the order must include details of the possible consequences of being held in contempt of court.

(7) Unless the Crown Court otherwise directs, an order made without notice has effect until the court makes an order varying or discharging it.

(8) The applicant for an order must-

(a)serve copies of the order and of the witness statement made in support of the application on the defendant and any person who is prohibited by the order from dealing with realisable property; and

(b)notify any person whom the applicant knows to be affected by the order of its terms.

Application for discharge or variation of restraint or ancillary order by a person affected by the order

59.3.-(1) This rule applies where a person affected by a restraint order makes an application to the Crown Court under section 42(3) of the Proceeds of Crime Act 2002 to discharge or vary the restraint order or any ancillary order made under section 41(7) of the Act.

(2) The application must be in writing and may be supported by a witness statement.

(3) The application and any witness statement must be lodged with the Crown Court.

(4) The application and any witness statement must be served on the person who applied for the restraint order and any person who is prohibited from dealing with realisable property by the restraint order (if he is not the person making the application) at least two days before the date fixed by the court for hearing the application, unless the Crown Court specifies a shorter period.

Application for variation of restraint or ancillary order by the person who applied for the order

59.4.-(1) This rule applies where the applicant for a restraint order makes an application under section 42(3) of the Proceeds of Crime Act 2002 to the Crown Court to vary the restraint order or any ancillary order made under section 41(7) of the 2002 Act (including where the court has already made a restraint order and the applicant is seeking to vary the order in order to restrain further realisable property).

(2) The application may be made without notice if the application is urgent or if there are reasonable grounds for believing that giving notice would cause the dissipation of realisable property which is the subject of the application.

(3) The application must be in writing and must be supported by a witness statement which must-

(a)give the grounds for the application;

(b)where the application is for the inclusion of further realisable property in a restraint order give full details, to the best of the witness's ability, of the realisable property in respect of which the applicant is seeking the order and specify the person holding that realisable property;

(c)where the application is to vary an ancillary order, include, if appropriate-

(i)any request for an order for disclosure of documents to which rule 61.9 applies (rules applicable to restraint and receivership proceedings: disclosure and inspection of documents),

(ii)the identity of any person whom the applicant wants the court to examine about the extent or whereabouts of realisable property,

(iii)a list of the main questions that the applicant wants to ask any such person, and

(iv)a list of any documents to which the applicant wants to refer such a person; and

(d)include the proposed terms of the variation.

(4) An application by an accredited financial investigator must include a statement that, under section 68 of the 2002 Act, the applicant has authority to apply.

(5) The application and witness statement must be lodged with the Crown Court.

(6) Except where, under paragraph (2), notice of the application is not required to be served, the application and witness statement must be served on any person who is prohibited from dealing with realisable property by the restraint order at least 2 days before the date fixed by the court for hearing the application, unless the Crown Court specifies a shorter period.

(7) If the court makes an order for the variation of a restraint or ancillary order, the applicant must serve copies of the order and of the witness statement made in support of the application on-

(a)the defendant;

(b)any person who is prohibited from dealing with realisable property by the restraint order (whether before or after the variation); and

(c)any other person whom the applicant knows to be affected by the order.

Application for discharge of restraint or ancillary order by the person who applied for the order

59.5.-(1) This rule applies where the applicant for a restraint order makes an application under section 42(3) of the Proceeds of Crime Act 2002 to discharge the order or any ancillary order made under section 41(7) of the 2002 Act.

(2) The application may be made without notice.

(3) The application must be in writing and must state the grounds for the application.

(4) If the court makes an order for the discharge of a restraint or ancillary order, the applicant must serve copies of the order on-

(a)the defendant;

(b)any person who is prohibited from dealing with realisable property by the restraint order (whether before or after the discharge); and

(c)any other person whom the applicant knows to be affected by the order.

Application to punish for contempt of court

59.6.-(1) This rule applies where a person is accused of disobeying-

(a)a restraint order; or

(b)an ancillary order made for the purpose of ensuring that a restraint order is effective.

(2) An applicant who wants the Crown 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 inherent power to punish for contempt of court a person who disobeys its order: see section 45 of the Senior Courts Act 1981(606).]

PART 60PROCEEDS OF CRIME ACT 2002: RULES APPLICABLE ONLY TO RECEIVERSHIP PROCEEDINGS

Application for appointment of a management or an enforcement receiver

60.1.-(1) This rule applies to an application for the appointment of a management receiver under section 48(1) of the Proceeds of Crime Act 2002(607) and an application for the appointment of an enforcement receiver under section 50(1) of the 2002 Act.

(2) The application may be made without notice if-

(a)the application is joined with an application for a restraint order under rule 59.1;

(b)the application is urgent; or

(c)there are reasonable grounds for believing that giving notice would cause the dissipation of realisable property which is the subject of the application.

(3) The application must be in writing and must be supported by a witness statement which must-

(a)give the grounds for the application;

(b)give full details of the proposed receiver;

(c)to the best of the witness' ability, give full details of the realisable property in respect of which the applicant is seeking the order and specify the person holding that realisable property;

(d)where the application is made by an accredited financial investigator, include a statement that, under section 68 of the 2002 Act, the applicant has authority to apply; and

(e)if the proposed receiver is not a person falling within section 55(8) of the 2002 Act(608) and the applicant is asking the court to allow the receiver to act-

(i)without giving security, or

(ii)before he has given security or satisfied the court that he has security in place,

explain the reasons why that is necessary.

(4) Where the application is for the appointment of an enforcement receiver, the applicant must provide the Crown Court with a copy of the confiscation order made against the defendant.

(5) The application and witness statement must be lodged with the Crown Court.

(6) Except where, under paragraph (2), notice of the application is not required to be served, the application and witness statement must be lodged with the Crown Court and served on-

(a)the defendant;

(b)any person who holds realisable property to which the application relates; and

(c)any other person whom the applicant knows to be affected by the application,

at least seven days before the date fixed by the court for hearing the application, unless the Crown Court specifies a shorter period.

(7) If the court makes an order for the appointment of a receiver, the applicant must serve copies of the order and of the witness statement made in support of the application on-

(a)the defendant;

(b)any person who holds realisable property to which the order applies; and

(c)any other person whom the applicant knows to be affected by the order.

Application for conferral of powers on a management receiver or an enforcement receiver

60.2.-(1) This rule applies to an application for the conferral of powers on a management receiver under section 49(1) of the Proceeds of Crime Act 2002 or an enforcement receiver under section 51(1) of the 2002 Act.

(2) The application may be made without notice if the application is to give the receiver power to take possession of property and-

(a)the application is joined with an application for a restraint order under rule 59.1;

(b)the application is urgent; or

(c)there are reasonable grounds for believing that giving notice would cause the dissipation of the property which is the subject of the application.

(3) The application must be made in writing and supported by a witness statement which must-

(a)give the grounds for the application;

(b)give full details of the realisable property in respect of which the applicant is seeking the order and specify the person holding that realisable property;

(c)where the application is made by an accredited financial investigator, include a statement that, under section 68 of the 2002 Act, the applicant has authority to apply; and

(d)where the application is for power to start, carry on or defend legal proceedings in respect of the property, explain-

(i)what proceedings are concerned, in what court, and

(ii)what powers the receiver will ask that court to exercise.

(4) Where the application is for the conferral of powers on an enforcement receiver, the applicant must provide the Crown Court with a copy of the confiscation order made against the defendant.

(5) The application and witness statement must be lodged with the Crown Court.

(6) Except where, under paragraph (2), notice of the application is not required to be served, the application and witness statement must be served on-

(a)the defendant;

(b)any person who holds realisable property in respect of which a receiver has been appointed or in respect of which an application for a receiver has been made;

(c)any other person whom the applicant knows to be affected by the application; and

(d)the receiver (if one has already been appointed),

at least seven days before the date fixed by the court for hearing the application, unless the Crown Court specifies a shorter period.

(7) If the court makes an order for the conferral of powers on a receiver, the applicant must serve copies of the order on-

(a)the defendant;

(b)any person who holds realisable property in respect of which the receiver has been appointed; and

(c)any other person whom the applicant knows to be affected by the order.

Applications for discharge or variation of receivership orders, and applications for other orders

60.3.-(1) This rule applies to applications under section 62(3) of the Proceeds of Crime Act 2002 for orders (by persons affected by the action of receivers) and applications under section 63(1) of the 2002 Act(609) for the discharge or variation of orders relating to receivers.

(2) The application must be made in writing and lodged with the Crown Court.

(3) The application must be served on the following persons (except where they are the person making the application)-

(a)the person who applied for appointment of the receiver;

(b)the defendant;

(c)any person who holds realisable property in respect of which the receiver has been appointed;

(d)the receiver; and

(e)any other person whom the applicant knows to be affected by the application,

at least seven days before the date fixed by the court for hearing the application, unless the Crown Court specifies a shorter period.

(4) If the court makes an order for the discharge or variation of an order relating to a receiver under section 63(2) of the 2002 Act, the applicant must serve copies of the order on any persons whom he knows to be affected by the order.

Sums in the hands of receivers

60.4.-(1) This rule applies where the amount payable under a confiscation order has been fully paid and any sums remain in the hands of an enforcement receiver.

(2) The receiver must make an application to the Crown Court for directions as to the distribution of the sums in his hands.

(3) The application and any evidence which the receiver intends to rely on in support of the application must be served on-

(a)the defendant; and

(b)any other person who held (or holds) interests in any property realised by the receiver,

at least seven days before the date fixed by the court for hearing the application, unless the Crown Court specifies a shorter period.

(4) If any of the provisions listed in paragraph (5) (provisions as to the vesting of funds in a trustee in bankruptcy) apply, then the Crown Court must make a declaration to that effect.

(5) These are the provisions-

(a)section 31B of the Bankruptcy (Scotland) Act 1985(610);

(b)section 306B of the Insolvency Act 1986(611); and

(c)article 279B of The Insolvency (Northern Ireland) Order 1989(612).

Security

60.5.-(1) This rule applies where the Crown Court appoints a receiver under section 48 or 50 of the Proceeds of Crime Act 2002 and the receiver is not a person falling within section 55(8) of the 2002 Act(613) (and it is immaterial whether the receiver is a permanent or temporary member of staff or on secondment from elsewhere).

(2) The Crown Court may direct that before the receiver begins to act, or within a specified time, he must either-

(a)give such security as the Crown Court may determine; or

(b)file with the Crown Court and serve on all parties to any receivership proceedings evidence that he already has in force sufficient security,

to cover his liability for his acts and omissions as a receiver.

(3) The Crown Court may terminate the appointment of a receiver if he fails to-

(a)give the security; or

(b)satisfy the court as to the security he has in force,

by the date specified.

Remuneration

60.6.-(1) This rule applies where the Crown Court appoints a receiver under section 48 or 50 of the Proceeds of Crime Act 2002 and the receiver is not a person falling within section 55(8) of the 2002 Act (and it is immaterial whether the receiver is a permanent or temporary member of staff or on secondment from elsewhere).

(2) The receiver may only charge for his services if the Crown Court-

(a)so directs; and

(b)specifies the basis on which the receiver is to be remunerated.

(3) Unless the Crown Court orders otherwise, in determining the remuneration of the receiver, the Crown Court shall award such sum as is reasonable and proportionate in all the circumstances and which takes into account-

(a)the time properly given by him and his staff to the receivership;

(b)the complexity of the receivership;

(c)any responsibility of an exceptional kind or degree which falls on the receiver in consequence of the receivership;

(d)the effectiveness with which the receiver appears to be carrying out, or to have carried out, his duties; and

(e)the value and nature of the subject matter of the receivership.

(4) The Crown Court may refer the determination of a receiver's remuneration to be ascertained by the taxing authority of the Crown Court and rules 76.11 to 76.14 shall have effect as if the taxing authority was ascertaining costs.

(5) A receiver appointed under section 48 of the 2002 Act is to receive his remuneration by realising property in respect of which he is appointed, in accordance with section 49(2)(d) of the 2002 Act.

(6) A receiver appointed under section 50 of the 2002 Act is to receive his remuneration by applying to the magistrates' court officer for payment under section 55(4)(b) of the 2002 Act(614).

Accounts

60.7.-(1) The Crown Court may order a receiver appointed under section 48 or 50 of the Proceeds of Crime Act 2002 to prepare and serve accounts.

(2) A party to receivership proceedings served with such accounts may apply for an order permitting him to inspect any document in the possession of the receiver relevant to those accounts.

(3) Any party to receivership proceedings may, within 14 days of being served with the accounts, serve notice on the receiver-

(a)specifying any item in the accounts to which he objects;

(b)giving the reason for such objection; and

(c)requiring the receiver within 14 days of receipt of the notice, either-

(i)to notify all the parties who were served with the accounts that he accepts the objection, or

(ii)if he does not accept the objection, to apply for an examination of the accounts in relation to the contested item.

(4) When the receiver applies for the examination of the accounts he must at the same time lodge with the Crown Court-

(a)the accounts; and

(b)a copy of the notice served on him under this section of the rule.

(5) If the receiver fails to comply with paragraph (3)(c) of this rule, any party to receivership proceedings may apply to the Crown Court for an examination of the accounts in relation to the contested item.

(6) At the conclusion of its examination of the accounts the court will certify the result.

Non-compliance by receiver

60.8.-(1) If a receiver appointed under section 48 or 50 of the Proceeds of Crime Act 2002 fails to comply with any rule, practice direction or direction of the Crown Court, the Crown Court may order him to attend a hearing to explain his non-compliance.

(2) At the hearing, the Crown Court may make any order it considers appropriate, including-

(a)terminating the appointment of the receiver;

(b)reducing the receiver's remuneration or disallowing it altogether; and

(c)ordering the receiver to pay the costs of any party.

PART 61PROCEEDS OF CRIME ACT 2002: RULES APPLICABLE TO RESTRAINT AND RECEIVERSHIP PROCEEDINGS

Distress and forfeiture

61.1.-(1) This rule applies to applications under sections 58(2) and (3) and 59(2) and (3) of the Proceeds of Crime Act 2002(615) for leave of the Crown Court to levy distress against property or exercise a right of forfeiture by peaceable re-entry in relation to a tenancy, in circumstances where the property or tenancy is the subject of a restraint order or a receiver has been appointed in respect of the property or tenancy.

(2) The application must be made in writing to the Crown Court.

(3) The application must be served on-

(a)the person who applied for the restraint order or the order appointing the receiver; and

(b)any receiver appointed in respect of the property or tenancy,

at least seven days before the date fixed by the court for hearing the application, unless the Crown Court specifies a shorter period.

Joining of applications

61.2. An application for the appointment of a management receiver or enforcement receiver under rule 60.1 may be joined with-

(a)an application for a restraint order under rule 59.1; and

(b)an application for the conferral of powers on the receiver under rule 60.2.

Applications to be dealt with in writing

61.3. Applications in restraint proceedings and receivership proceedings are to be dealt with without a hearing, unless the Crown Court orders otherwise.

Business in chambers

61.4. Restraint proceedings and receivership proceedings may be heard in chambers.

Power of court to control evidence

61.5.-(1) When hearing restraint proceedings and receivership proceedings, the Crown Court may control the evidence by giving directions as to-

(a)the issues on which it requires evidence;

(b)the nature of the evidence which it requires to decide those issues; and

(c)the way in which the evidence is to be placed before the court.

(2) The court may use its power under this rule to exclude evidence that would otherwise be admissible.

(3) The court may limit cross-examination in restraint proceedings and receivership proceedings.

Evidence of witnesses

61.6.-(1) The general rule is that, unless the Crown Court orders otherwise, any fact which needs to be proved in restraint proceedings or receivership proceedings by the evidence of a witness is to be proved by their evidence in writing.

(2) Where evidence is to be given in writing under this rule, any party may apply to the Crown Court for permission to cross-examine the person giving the evidence.

(3) If the Crown Court gives permission under paragraph (2) but the person in question does not attend as required by the order, his evidence may not be used unless the court gives permission.

Witness summons

61.7.-(1) Any party to restraint proceedings or receivership proceedings may apply to the Crown Court to issue a witness summons requiring a witness to-

(a)attend court to give evidence; or

(b)produce documents to the court.

(2) Rule 28.3 applies to an application under this rule as it applies to an application under section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965(616).

Hearsay evidence

61.8. Section 2(1) of the Civil Evidence Act 1995(617) (duty to give notice of intention to rely on hearsay evidence) does not apply to evidence in restraint proceedings and receivership proceedings.

Disclosure and inspection of documents

61.9.-(1) This rule applies where, in the course of restraint proceedings or receivership proceedings, an issue arises as to whether property is realisable property.

(2) The Crown Court may make an order for disclosure of documents.

(3) Part 31 of the Civil Procedure Rules 1998(618) as amended from time to time shall have effect as if the proceedings were proceedings in the High Court.

Court documents

61.10.-(1) Any order which the Crown Court issues in restraint proceedings or receivership proceedings must-

(a)state the name and judicial title of the person who made it;

(b)bear the date on which it is made; and

(c)be sealed by the Crown Court.

(2) The Crown Court may place the seal on the order-

(a)by hand; or

(b)by printing a facsimile of the seal on the order whether electronically or otherwise.

(3) A document purporting to bear the court's seal shall be admissible in evidence without further proof.

Consent orders

61.11.-(1) This rule applies where all the parties to restraint proceedings or receivership proceedings agree the terms in which an order should be made.

(2) Any party may apply for a judgment or order in the terms agreed.

(3) The Crown Court may deal with an application under paragraph (2) without a hearing.

(4) Where this rule applies-

(a)the order which is agreed by the parties must be drawn up in the terms agreed;

(b)it must be expressed as being -�By Consent'; and

(c)it must be signed by the legal representative acting for each of the parties to whom the order relates or by the party if he is a litigant in person.

(5) Where an application is made under this rule, then the requirements of any other rule as to the procedure for making an application do not apply.

Slips and omissions

61.12.-(1) The Crown Court may at any time correct an accidental slip or omission in an order made in restraint proceedings or receivership proceedings.

(2) A party may apply for a correction without notice.

Supply of documents from court records

61.13.-(1) No document relating to restraint proceedings or receivership proceedings may be supplied from the records of the Crown Court for any person to inspect or copy unless the Crown Court grants permission.

(2) An application for permission under paragraph (1) must be made on notice to the parties to the proceedings.

Disclosure of documents in criminal proceedings

61.14.-(1) This rule applies where-

(a)proceedings for an offence have been started in the Crown Court and the defendant has not been either convicted or acquitted on all counts; and

(b)an application for a restraint order under section 42(1) of the Proceeds of Crime Act 2002 has been made.

(2) The judge presiding at the proceedings for the offence may be supplied from the records of the Crown Court with documents relating to restraint proceedings and any receivership proceedings.

(3) Such documents must not otherwise be disclosed in the proceedings for the offence.

Preparation of documents

61.15.-(1) Every order in restraint proceedings or receivership proceedings will be drawn up by the Crown Court unless-

(a)the Crown Court orders a party to draw it up;

(b)a party, with the permission of the Crown Court, agrees to draw it up; or

(c)the order is made by consent under rule 61.10.

(2) The Crown Court may direct that-

(a)an order drawn up by a party must be checked by the Crown Court before it is sealed; or

(b)before an order is drawn up by the Crown Court, the parties must lodge an agreed statement of its terms.

(3) Where an order is to be drawn up by a party-

(a)he must lodge it with the Crown Court no later than seven days after the date on which the court ordered or permitted him to draw it up so that it can be sealed by the Crown Court; and

(b)if he fails to lodge it within that period, any other party may draw it up and lodge it.

(4) Nothing in this rule shall require the Crown Court to accept a document which is illegible, has not been duly authorised, or is unsatisfactory for some other similar reason.

Change of solicitor

61.16.-(1) This rule applies where-

(a)a party for whom a solicitor is acting in restraint proceedings or receivership proceedings wants to change his solicitor;

(b)a party, after having represented himself in such proceedings, appoints a solicitor to act on his behalf (except where the solicitor is appointed only to act as an advocate for a hearing); or

(c)a party, after having been represented by a solicitor in such proceedings, intends to act in person.

(2) Where this rule applies, the party or his solicitor (where one is acting) must-

(a)lodge notice of the change at the Crown Court; and

(b)serve notice of the change on every other party and, where paragraph (1)(a) or (c) applies, on the former solicitor.

(3) The notice lodged at the Crown Court must state that notice has been served as required by paragraph (2)(b).

(4) Subject to paragraph (5), where a party has changed his solicitor or intends to act in person, the former solicitor will be considered to be the party's solicitor unless and until-

(a)notice is served in accordance with paragraph (2); or

(b)the Crown Court makes an order under rule 61.17 and the order is served as required by paragraph (3) of that rule.

(5) Where the certificate of a LSC funded client is revoked or discharged-

(a)the solicitor who acted for that person will cease to be the solicitor acting in the proceedings as soon as his retainer is determined under regulation 4 of The Community Legal Service (Costs) Regulations 2000(619); and

(b)if that person wishes to continue, where he appoints a solicitor to act on his behalf paragraph (2) will apply as if he had previously represented himself in the proceedings.

(6) -�Certificate' in paragraph (5) means a certificate issued under the Funding Code (approved under section 9 of the Access to Justice Act 1999(620)) and -�LSC funded client' means an individual who receives services funded by the Legal Services Commission as part of the Community Legal Service within the meaning of Part I of the 1999 Act.

Application by solicitor for declaration that solicitor has ceased to act

61.17.-(1) A solicitor may apply to the Crown Court for an order declaring that he has ceased to be the solicitor acting for a party to restraint proceedings or receivership proceedings.

(2) Where an application is made under this rule-

(a)notice of the application must be given to the party for whom the solicitor is acting, unless the Crown Court directs otherwise; and

(b)the application must be supported by evidence.

(3) Where the Crown Court makes an order that a solicitor has ceased to act, the solicitor must serve a copy of the order on every party to the proceedings.

Application by other party for declaration that solicitor has ceased to act

61.18.-(1) Where-

(a)a solicitor who has acted for a party to restraint proceedings or receivership proceedings-

(i)has died,

(ii)has become bankrupt,

(iii)has ceased to practise, or

(iv)cannot be found, and

(b)the party has not given notice of a change of solicitor or notice of intention to act in person as required by rule 61.16,

any other party may apply to the Crown Court for an order declaring that the solicitor has ceased to be the solicitor acting for the other party in the proceedings.

(2) Where an application is made under this rule, notice of the application must be given to the party to whose solicitor the application relates unless the Crown Court directs otherwise.

(3) Where the Crown Court makes an order under this rule, the applicant must serve a copy of the order on every other party to the proceedings.

Order for costs

61.19.-(1) This rule applies where the Crown Court is deciding whether to make an order for costs in restraint proceedings or receivership proceedings.

(2) The court has discretion as to-

(a)whether costs are payable by one party to another;

(b)the amount of those costs; and

(c)when they are to be paid.

(3) If the court decides to make an order about costs-

(a)the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but

(b)the court may make a different order.

(4) In deciding what order (if any) to make about costs, the court must have regard to all of the circumstances, including-

(a)the conduct of all the parties; and

(b)whether a party has succeeded on part of an application, even if he has not been wholly successful.

(5) The orders which the court may make include an order that a party must pay-

(a)a proportion of another party's costs;

(b)a stated amount in respect of another party's costs;

(c)costs from or until a certain date only;

(d)costs incurred before proceedings have begun;

(e)costs relating to particular steps taken in the proceedings;

(f)costs relating only to a distinct part of the proceedings; and

(g)interest on costs from or until a certain date, including a date before the making of an order.

(6) Where the court would otherwise consider making an order under paragraph (5)(f), it must instead, if practicable, make an order under paragraph (5)(a) or (c).

(7) Where the court has ordered a party to pay costs, it may order an amount to be paid on account before the costs are assessed.

[Note. See section 52 of the Senior Courts Act 1981(621).]

Assessment of costs

61.20.-(1) Where the Crown Court has made an order for costs in restraint proceedings or receivership proceedings it may either-

(a)make an assessment of the costs itself; or

(b)order assessment of the costs under rule 76.11.

(2) In either case, the Crown Court or the assessing authority, as the case may be, must-

(a)only allow costs which are proportionate to the matters in issue; and

(b)resolve any doubt which it may have as to whether the costs were reasonably incurred or reasonable and proportionate in favour of the paying party.

(3) The Crown Court or the assessing authority, as the case may be, is to have regard to all the circumstances in deciding whether costs were proportionately or reasonably incurred or proportionate and reasonable in amount.

(4) In particular, the Crown Court or the assessing authority must give effect to any orders which have already been made.

(5) The Crown Court or the assessing authority must also have regard to-

(a)the conduct of all the parties, including in particular, conduct before, as well as during, the proceedings;

(b)the amount or value of the property involved;

(c)the importance of the matter to all the parties;

(d)the particular complexity of the matter or the difficulty or novelty of the questions raised;

(e)the skill, effort, specialised knowledge and responsibility involved;

(f)the time spent on the application; and

(g)the place where and the circumstances in which work or any part of it was done.

Time for complying with an order for costs

61.21. A party to restraint proceedings or receivership proceedings must comply with an order for the payment of costs within 14 days of-

(a)the date of the order if it states the amount of those costs;

(b)if the amount of those costs is decided later under rule 76.11, the date of the assessing authority's decision; or

(c)in either case, such later date as the Crown Court may specify.

Application of costs rules

61.22. Rules 61.19, 61.20 and 61.21 do not apply to the assessment of costs in proceedings to the extent that section 11 of the Access to Justice Act 1999 applies and provisions made under that Act make different provision.

PART 62CONTEMPT OF COURT

SECTION 1: GENERAL RULES

When this Part applies

62.1.-(1) This Part applies where the court can deal with a person for conduct-

(a)in contempt of court; or

(b)in contravention of the legislation to which rules 62.5 and 62.9 refer.

(2) In this Part, -�respondent' means any such person.

[Note. For the court's powers to punish for contempt of court, see the notes to rules 62.5 and 62.9.]

Exercise of court's power to deal with contempt of court

62.2.-(1) The court must determine at a hearing-

(a)an enquiry under rule 62.8;

(b)an allegation under rule 62.9.

(2) The court must not proceed in the respondent's absence unless-

(a)the respondent's behaviour makes it impracticable to proceed otherwise; or

(b)the respondent has had at least 14 days' notice of the hearing, or was present when it was arranged.

(3) If the court hears part of an enquiry or allegation in private, it must announce at a hearing in public-

(a)the respondent's name;

(b)in general terms, the nature of any conduct that the respondent admits, or the court finds proved; and

(c)any punishment imposed.

Notice of suspension of imprisonment by Court of Appeal or Crown Court

62.3.-(1) This rule applies where-

(a)the Court of Appeal or the Crown Court suspends an order of imprisonment for contempt of court; and

(b)the respondent is absent when the court does so.

(2) The respondent must be served with notice of the terms of the court's order-

(a)by any applicant under rule 62.9; or

(b)by the court officer, in any other case.

[Note. By reason of sections 15 and 45 of the Senior Courts Act 1981(622), the Court of Appeal and the Crown Court each has an inherent power to suspend imprisonment for contempt of court, on conditions, or for a period, or both.]

Application to discharge an order for imprisonment

62.4.-(1) This rule applies where the court can discharge an order for a respondent's imprisonment for contempt of court.

(2) A respondent who wants the court to discharge such an order must-

(a)apply in writing, unless the court otherwise directs, and serve any written application on-

(i)the court officer, and

(ii)any applicant under rule 62.9 on whose application the respondent was imprisoned;

(b)in the application-

(i)explain why it is appropriate for the order for imprisonment to be discharged, and

(ii)give details of any appeal, and its outcome; and

(c)ask for a hearing, if the respondent wants one.

[Note. By reason of sections 15 and 45 of the Senior Courts Act 1981, the Court of Appeal and the Crown Court each has an inherent power to discharge an order for a respondent's imprisonment for contempt of court in failing to comply with a court order.

Under section 97(4) of the Magistrates' Courts Act 1980(623), a magistrates' court can discharge an order for imprisonment if the respondent gives evidence.

Under section 12(4) of the Contempt of Court Act 1981(624), a magistrates' court can discharge an order for imprisonment made under that section.]

SECTION 2: CONTEMPT OF COURT BY OBSTRUCTION, DISRUPTION, ETC.

Initial procedure on obstruction, disruption, etc.

62.5.-(1) This rule applies where the court observes, or someone reports to the court-

(a)in the Court of Appeal or the Crown Court, obstructive, disruptive, insulting or intimidating conduct, in the courtroom or in its vicinity, or otherwise immediately affecting the proceedings;

(b)in the Crown Court, a contravention of-

(i)section 3 of the Criminal Procedure (Attendance of Witnesses) Act 1965(625) (disobeying a witness summons);

(ii)section 20 of the Juries Act 1974(626) (disobeying a jury summons);

(iii)section 8 of the Contempt of Court Act 1981(627) (obtaining details of a jury's deliberations, etc.);

(c)in a magistrates' court, a contravention of-

(i)section 97(4) of the Magistrates' Courts Act 1980 (refusing to give evidence), or

(ii)section 12 of the Contempt of Court Act 1981(628) (insulting or interrupting the court, etc.);

(d)a contravention of section 9 of the Contempt of Court Act 1981(629) (without the court's permission, recording the proceedings, etc.);

(e)any other conduct with which the court can deal as, or as if it were, a criminal contempt of court, except failure to surrender to bail under section 6 of the Bail Act 1976(630).

(2) Unless the respondent's behaviour makes it impracticable to do so, the court must-

(a)explain, in terms the respondent can understand (with help, if necessary)-

(i)the conduct that is in question,

(ii)that the court can impose imprisonment, or a fine, or both, for such conduct,

(iii)(where relevant) that the court has power to order the respondent's immediate temporary detention, if in the court's opinion that is required,

(iv)that the respondent may explain the conduct,

(v)that the respondent may apologise, if he or she so wishes, and that this may persuade the court to take no further action, and

(vi)that the respondent may take legal advice; and

(b)allow the respondent a reasonable opportunity to reflect, take advice, explain and, if he or she so wishes, apologise.

(3) The court may then-

(a)take no further action in respect of that conduct;

(b)enquire into the conduct there and then; or

(c)postpone that enquiry (if a magistrates' court, only until later the same day).

[Note. By reason of sections 15 and 45 of the Senior Courts Act 1981, the Court of Appeal and the Crown Court each has an inherent power to imprison (for a maximum of 2 years), or fine (to an unlimited amount), or both, a respondent for contempt of court for the conduct listed in paragraph (1)(a), (b), (d) or (e). See also section 14 of the Contempt of Court Act 1981(631).

Under section 97(4) of the Magistrates' Courts Act 1980, and under sections 12 and 14 of the Contempt of Court Act 1981, a magistrates' court can imprison (for a maximum of 1 month), or fine (to a maximum of £2,500), or both, a respondent who contravenes a provision listed in paragraph (1)(c) or (d). Section 12(1) of the 1981 Act allows the court to "deal with any person who-

(a)wilfully insults the justice or justices, any witness before or officer of the court or any solicitor or counsel having business in the court, during his or their sitting or attendance in court or in going to or returning from the court; or

(b)wilfully interrupts the proceedings of the court or otherwise misbehaves in court."

Under section 89 of the Powers of Criminal Courts (Sentencing) Act 2000(632), no respondent who is under 21 may be imprisoned for contempt of court. Under section 108 of that Act(633), a respondent who is at least 18 but under 21 may be detained if the court is of the opinion that no other method of dealing with him or her is appropriate. Under section 14(2A) of the Contempt of Court Act 1981(634), a respondent who is under 17 may not be ordered to attend an attendance centre.

Under section 258 of the Criminal Justice Act 2003(635), a respondent who is imprisoned for contempt of court must be released unconditionally after serving half the term.

Under section 12 of the Access to Justice Act 1999(636), the respondent may receive advice and representation funded by the Legal Services Commission in "proceedings for contempt committed, or alleged to have been committed, by an individual in the face of the court".

By reason of sections 15 and 45 of the Senior Courts Act 1981, the Court of Appeal and the Crown Court each has an inherent power temporarily to detain a respondent, for example to restore order, when dealing with obstructive, disruptive, insulting or intimidating conduct. Under section 12(2) of the Contempt of Court Act 1981(637), a magistrates' court can temporarily detain a respondent until later the same day on a contravention of that section.

Part 19 contains rules about bail.]

Review after temporary detention

62.6.-(1) This rule applies in a case in which the court has ordered the respondent's immediate temporary detention for conduct to which rule 62.5 applies.

(2) The court must review the case-

(a)if a magistrates' court, later the same day;

(b)if the Court of Appeal or the Crown Court, no later than the next business day.

(3) On the review, the court must-

(a)unless the respondent is absent, repeat the explanations required by rule 62.5(2)(a); and

(b)allow the respondent a reasonable opportunity to reflect, take advice, explain and, if he or she so wishes, apologise.

(4) The court may then-

(a)take no further action in respect of the conduct;

(b)if a magistrates' court, enquire into the conduct there and then; or

(c)if the Court of Appeal or the Crown Court-

(i)enquire into the conduct there and then, or

(ii)postpone the enquiry, and order the respondent's release from such detention in the meantime.

Postponement of enquiry

62.7.-(1) This rule applies where the Court of Appeal or the Crown Court postpones the enquiry.

(2) The court must arrange for the preparation of a written statement containing such particulars of the conduct in question as to make clear what the respondent appears to have done.

(3) The court officer must serve on the respondent-

(a)that written statement;

(b)notice of where and when the postponed enquiry will take place; and

(c)a notice that-

(i)reminds the respondent that the court can impose imprisonment, or a fine, or both, for contempt of court, and

(ii)warns the respondent that the court may pursue the postponed enquiry in the respondent's absence, if the respondent does not attend.

Procedure on enquiry

62.8.-(1) At an enquiry, the court must-

(a)ensure that the respondent understands (with help, if necessary) what is alleged, if the enquiry has been postponed from a previous occasion;

(b)explain what the procedure at the enquiry will be; and

(c)ask whether the respondent admits the conduct in question.

(2) If the respondent admits the conduct, the court need not receive evidence.

(3) If the respondent does not admit the conduct, the court will receive-

(a)any statement served under rule 62.7;

(b)any other evidence of the conduct;

(c)any evidence introduced by the respondent; and

(d)any representations by the respondent about the conduct.

(4) If the respondent admits the conduct, or the court finds it proved, the court must-

(a)before imposing any punishment for contempt of court, give the respondent an opportunity to make representations relevant to punishment;

(b)explain, in terms the respondent can understand (with help, if necessary)-

(i)the reasons for its decision, including its findings of fact, and

(ii)the punishment it imposes, and its effect; and

(c)if a magistrates' court, arrange for the preparation of a written record of those findings.

(5) The court that conducts an enquiry-

(a)need not include the same member or members as the court that observed the conduct; but

(b)may do so, unless that would be unfair to the respondent.

SECTION 3: CONTEMPT OF COURT BY FAILURE TO COMPLY WITH COURT ORDER, ETC.

Initial procedure on failure to comply with court order, etc.

62.9.-(1) This rule applies where-

(a)a party, or other person directly affected, alleges-

(i)in the Crown Court, a failure to comply with an order to which rule 6.13 or 6.22 (certain investigation orders), or 59.6 (a restraint order), applies,

(ii)in the Court of Appeal or the Crown Court, any other conduct with which that court can deal as a civil contempt of court, or

(iii)in the Crown Court or a magistrates' court, unauthorised use of disclosed prosecution material under section 17 of the Criminal Procedure and Investigations Act 1996(638);

(b)the court deals on its own initiative with conduct to which paragraph (1)(a) applies.

(2) Such a party or person must-

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

(b)serve on the respondent-

(i)the application, and

(ii)notice of where and when the court will consider the allegation (not less than 14 days after service).

(3) The application must-

(a)identify the respondent;

(b)explain that it is an application for the respondent to be dealt with for contempt of court;

(c)contain such particulars of the conduct in question as to make clear what is alleged against the respondent; and

(d)include a notice warning the respondent that the court-

(i)can impose imprisonment, or a fine, or both, for contempt of court, and

(ii)may deal with the application in the respondent's absence, if the respondent does not attend the hearing.

(4) A court which acts on its own initiative under paragraph (1)(b) must-

(a)arrange for the preparation of a written statement containing the same information as an application; and

(b)arrange for the service on the respondent of-

(i)that written statement, and

(ii)notice of where and when the court will consider the allegation (not less than 14 days after service).

[Note. By reason of section 45 of the Senior Courts Act 1981(639), the Crown Court has an inherent power to imprison (for a maximum of 2 years), or fine (to an unlimited amount), or both, a respondent for conduct in contempt of court by failing to comply with a court order or an undertaking given to the court.

Under section 18 of the Criminal Procedure and Investigations Act 1996(640)-

(a)the Crown Court can imprison (for a maximum of 2 years), or fine (to an unlimited amount), or both;

(b)a magistrates' court can imprison (for a maximum of 6 months), or fine (to a maximum of £5,000), or both,

a person who uses disclosed prosecution material in contravention of section 17 of that Act. See also rule 22.8.

Under section 89 of the Powers of Criminal Courts (Sentencing) Act 2000, no respondent who is under 21 may be imprisoned for contempt of court. Under section 108 of that Act, a respondent who is at least 18 but under 21 may be detained if the court is of the opinion that no other method of dealing with him or her is appropriate. Under section 14(2A) of the Contempt of Court Act 1981, a respondent who is under 17 may not be ordered to attend an attendance centre.

Under section 258 of the Criminal Justice Act 2003, a respondent who is imprisoned for contempt of court must be released unconditionally after serving half the term.

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

The rules in Part 4 require that an application under this rule must be served by handing it to the person accused of contempt of court unless the court otherwise directs.]

Procedure on hearing

62.10.-(1) At the hearing of an allegation under rule 62.9, the court must-

(a)ensure that the respondent understands (with help, if necessary) what is alleged;

(b)explain what the procedure at the hearing will be; and

(c)ask whether the respondent admits the conduct in question.

(2) If the respondent admits the conduct, the court need not receive evidence.

(3) If the respondent does not admit the conduct, the court will receive-

(a)the application or written statement served under rule 62.9;

(b)any other evidence of the conduct;

(c)any evidence introduced by the respondent; and

(d)any representations by the respondent about the conduct.

(4) If the respondent admits the conduct, or the court finds it proved, the court must-

(a)before imposing any punishment for contempt of court, give the respondent an opportunity to make representations relevant to punishment;

(b)explain, in terms the respondent can understand (with help, if necessary)-

(i)the reasons for its decision, including its findings of fact, and

(ii)the punishment it imposes, and its effect; and

(c)in a magistrates' court, arrange for the preparation of a written record of those findings.

Introduction of written witness statement or other hearsay

62.11.-(1) Where rule 62.9 applies, an applicant or respondent who wants to introduce in evidence the written statement of a witness, or other hearsay, must-

(a)serve a copy of the statement, or notice of other hearsay, on-

(i)the court officer, and

(ii)the other party; and

(b)serve the copy or notice-

(i)when serving the application under rule 62.9, in the case of an applicant, or

(ii)not more than 7 days after service of that application or of the court's written statement, in the case of the respondent.

(2) Such service is notice of that party's intention to introduce in evidence that written witness statement, or other hearsay, unless that party otherwise indicates when serving it.

(3) A party entitled to receive such notice may waive that entitlement.

[Note. On an application under rule 62.9, hearsay evidence is admissible under the Civil Evidence Act 1995. Section 1(2) of the 1995 Act(641) defines hearsay as meaning -�a statement made otherwise than by a person while giving oral evidence in the proceedings which is tendered as evidence of the matters stated'. Section 13 of the Act(642) defines a statement as meaning -�any representation of fact or opinion, however made'.

Under section 2 of the 1995 Act(643), a party who wants to introduce hearsay in evidence must give reasonable and practicable notice, in accordance with procedure rules, unless the recipient waives that requirement.]

Content of written witness statement

62.12.-(1) This rule applies to a written witness statement served under rule 62.11.

(2) Such a written witness statement must contain a declaration by the person making it that it is true to the best of that person's knowledge and belief.

[Note. By reason of sections 15 and 45 of the Senior Courts Act 1981(644), the Court of Appeal and the Crown Court each has an inherent power to imprison (for a maximum of 2 years), or fine (to an unlimited amount), or both, for contempt of court a person who, in a written witness statement to which this rule applies, makes, or causes to be made, a false statement without an honest belief in its truth. See also section 14 of the Contempt of Court Act 1981(645).]

Content of notice of other hearsay

62.13.-(1) This rule applies to a notice of hearsay, other than a written witness statement, served under rule 62.11.

(2) Such a notice must-

(a)set out the evidence, or attach the document that contains it; and

(b)identify the person who made the statement that is hearsay.

Cross-examination of maker of written witness statement or other hearsay

62.14.-(1) This rule applies where a party wants the court's permission to cross-examine a person who made a statement which another party wants to introduce as hearsay.

(2) The party who wants to cross-examine that person must-

(a)apply in writing, with reasons; and

(b)serve the application on-

(i)the court officer, and

(ii)the party who served the hearsay.

(3) A respondent who wants to cross-examine such a person must apply to do so not more than 7 days after service of the hearsay by the applicant.

(4) An applicant who wants to cross-examine such a person must apply to do so not more than 3 days after service of the hearsay by the respondent.

(5) The court-

(a)may decide an application under this rule without a hearing; but

(b)must not dismiss such an application unless the person making it has had an opportunity to make representations at a hearing.

[Note. See also section 3 of the Civil Evidence Act 1995(646).]

Credibility and consistency of maker of written witness statement or other hearsay

62.15.-(1) This rule applies where a party wants to challenge the credibility or consistency of a person who made a statement which another party wants to introduce as hearsay.

(2) The party who wants to challenge the credibility or consistency of that person must-

(a)serve a written notice of intention to do so on-

(i)the court officer, and

(ii)the party who served the hearsay; and

(b)in it, identify any statement or other material on which that party relies.

(3) A respondent who wants to challenge such a person's credibility or consistency must serve such a notice not more than 7 days after service of the hearsay by the applicant.

(4) An applicant who wants to challenge such a person's credibility or consistency must serve such a notice not more than 3 days after service of the hearsay by the respondent.

(5) The party who served the hearsay-

(a)may call that person to give oral evidence instead; and

(b)if so, must serve a notice of intention to do so on-

(i)the court officer, and

(ii)the other party

as soon as practicable after service of the notice under paragraph (2).

[Note. Section 5(2) of the Civil Evidence Act 1995(647) describes the procedure for challenging the credibility of the maker of a statement of which hearsay evidence is introduced.

See also section 6 of that Act(648). The 1995 Act does not allow the introduction of evidence of a previous inconsistent statement otherwise than in accordance with sections 5, 6 and 7 of the Criminal Procedure Act 1865(649).]

Magistrates' courts' powers to adjourn, etc.

62.16.-(1) This rule applies where a magistrates' court deals with unauthorised disclosure of prosecution material under sections 17 and 18 of the Criminal Procedure and Investigations Act 1996(650).

(2) The sections of the Magistrates' Courts Act 1980 listed in paragraph (3) apply as if in those sections-

(a)-�complaint' and -�summons' each referred to an application or written statement under rule 62.9;

(b)-�complainant' meant an applicant; and

(c)-�defendant' meant the respondent.

(3) Those sections are-

(a)section 51(651) (issue of summons on complaint);

(b)section 54(652) (adjournment);

(c)section 55(653) (non-appearance of defendant);

(d)section 97(1)(654) (summons to witness);

(e)section 121(1)(655) (constitution and place of sitting of court);

(f)section 123(656) (defect in process).

(4) Section 127 of the 1980 Act(657) (limitation of time) does not apply.

[Note. Under section 19(3) of the Criminal Procedure and Investigations Act 1996(658), Criminal Procedure Rules may contain provisions equivalent to those contained in Schedule 3 to the Contempt of Court Act 1981(659) (which allows magistrates' courts in cases of contempt of court to use certain powers such courts possess in other cases).]

Court's power to vary requirements under Section 3

62.17.-(1) The court may shorten or extend (even after it has expired) a time limit under rule 62.11, 62.14 or 62.15.

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

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

(b)explain the delay.

PART 63APPEAL TO THE CROWN COURT

When this Part applies

63.1.-(1) This Part applies where-

(a)a defendant wants to appeal under-

(i)section 108 of the Magistrates' Courts Act 1980(660),

(ii)section 45 of the Mental Health Act 1983(661),

(iii)paragraph 10 of Schedule 3 to the Powers of Criminal Courts (Sentencing) Act 2000(662), or paragraphs 9(8) or 13(5) of Schedule 8 to the Criminal Justice Act 2003(663),

(iv)section 10 of the Violent Crime Reduction Act 2006(664),

(v)section 42 of the Counter Terrorism Act 2008(665);

(b)the Criminal Cases Review Commission refers a defendant's case to the Crown Court under section 11 of the Criminal Appeal Act 1995(666);

(c)a prosecutor wants to appeal under-

(i)section 14A(5A) of the Football Spectators Act 1989(667), or

(ii)section 147(3) of the Customs and Excise Management Act 1979(668); or

(d)a person wants to appeal under-

(i)section 1 of the Magistrates' Courts (Appeals from Binding Over Orders) Act 1956(669),

(ii)section 12(5) of the Contempt of Court Act 1981(670),

(iii)regulation 3C or 3H of The Costs in Criminal Cases (General) Regulations 1986(671), or

(iv)section 22 of the Football Spectators Act 1989(672).

(2) A reference to an -�appellant' in this Part is a reference to such a party or person.

[Note. An appeal to the Crown Court is by way of re-hearing: see section 79(3) of the Senior Courts Act 1981(673). For the powers of the Crown Court on an appeal, see section 48 of that Act.

A defendant may appeal from a magistrates' court to the Crown Court-

(a)under section 108 of the Magistrates' Courts Act 1980, against sentence after a guilty plea and after a not guilty plea against conviction, against a finding of guilt or against sentence;

(b)under section 45 of the Mental Health Act 1983, where the magistrates' court makes a hospital order or guardianship order without convicting the defendant;

(c)under paragraph 10 of Schedule 3 to the Powers of Criminal Courts (Sentencing) Act 2000, or under paragraphs 9(8) or 13(5) of Schedule 8 to the Criminal Justice Act 2003, where the magistrates' court revokes a community order and deals with the defendant in another way;

(d)under section 10 of the Violent Crime Reduction Act 2006, where the magistrates' court makes a drinking banning order;

(e)under section 42 of the Counter Terrorism Act 2008, where the magistrates' court decides that an offence has a terrorist connection.

See section 13 of the Criminal Appeal Act 1995(674) for the circumstances in which the Criminal Cases Review Commission may refer a conviction or sentence to the Crown Court.

Under section 14A(5A) of the Football Spectators Act 1989, a prosecutor may appeal to the Crown Court against a failure by a magistrates' court to make a football banning order.

Under section 147(3) of the Customs and Excise Management Act 1979, a prosecutor may appeal to the Crown Court against any decision of a magistrates' court in proceedings for an offence under any Act relating to customs or excise.

Under section 1 of the Magistrates' Courts (Appeals from Binding Over Orders) Act 1956, a person bound over to keep the peace or be of good behaviour by a magistrates' court may appeal to the Crown Court.

Under section 12(5) of the Contempt of Court Act 1981, a person detained, committed to custody or fined by a magistrates' court for insulting a member of the court or another participant in the case, or for interrupting the proceedings, may appeal to the Crown Court.

Under regulation 3C of The Costs in Criminal Cases (General) Regulations 1986, a legal representative against whom a magistrates' court makes a wasted costs order under section 19A of the Prosecution of Offences Act 1985 and regulation 3B may appeal against that order to the Crown Court.

Under regulation 3H of The Costs in Criminal Cases (General) Regulations 1986, a third party against whom a magistrates' court makes a costs order under section 19B of the Prosecution of Offences Act 1985 and regulation 3F may appeal against that order to the Crown Court.

Under section 22 of the Football Spectators Act 1989, any person aggrieved by the decision of a magistrates' court making a football banning order may appeal to the Crown Court.]

Service of appeal notice

63.2.-(1) An appellant must serve an appeal notice on-

(a)the magistrates' court officer; and

(b)every other party.

(2) The appellant must serve the appeal notice-

(a)as soon after the decision appealed against as the appellant wants; but

(b)not more than 21 days after-

(i)sentence or the date sentence is deferred, whichever is earlier, if the appeal is against conviction or against a finding of guilt,

(ii)sentence, if the appeal is against sentence, or

(iii)the order or failure to make an order about which the appellant wants to appeal, in any other case.

(3) The appellant must-

(a)serve with the appeal notice any application for an extension of the time limit under this rule; and

(b)in that application, explain why the appeal notice is late.

[Note. Under section 1(1) of the Powers of Criminal Courts (Sentencing) Act 2000(675), a magistrates' court may defer passing sentence for up to 6 months.]

Form of appeal notice

63.3. The appeal notice must be in writing and must-

(a)specify-

(i)the conviction or finding of guilt,

(ii)the sentence, or

(iii)the order, or the failure to make an order

about which the appellant wants to appeal;

(b)summarise the issues;

(c)in an appeal against conviction-

(i)identify the prosecution witnesses whom the appellant will want to question if they are called to give oral evidence, and

(ii)say how long the trial lasted in the magistrates' court and how long the appeal is likely to last in the Crown Court;

(d)in an appeal against a finding that the appellant insulted someone or interrupted proceedings in the magistrates' court, attach-

(i)the magistrates' court's written findings of fact, and

(ii)the appellant's response to those findings;

(e)say whether the appellant has asked the magistrates' court to reconsider the case; and

(f)include a list of those on whom the appellant has served the appeal notice.

[Note. The Practice Direction sets out a form of appeal notice for use in connection with this rule.

In some cases, a magistrates' court can reconsider a conviction, sentence or other order and make a fresh decision. See section 142 of the Magistrates' Courts Act 1980(676).

See also rule 3.10 (conduct of a trial or an appeal).]

Duty of magistrates' court officer

63.4. The magistrates' court officer must-

(a)as soon as practicable serve on the Crown Court officer-

(i)the appeal notice and any accompanying application served by the appellant,

(ii)details of the parties including their addresses,

(iii)a copy of each magistrates' court register entry relating to the decision under appeal and to any application for bail pending appeal, and

(iv)any report received for the purposes of sentencing;

(b)keep any document or object exhibited in the proceedings in the magistrates' court, or arrange for it to be kept by some other appropriate person, until-

(i)6 weeks after the conclusion of those proceedings, or

(ii)the conclusion of any proceedings in the Crown Court that begin within that 6 weeks; and

(c)provide the Crown Court with any document, object or information for which the Crown Court officer asks, within such period as the Crown Court officer may require.

Duty of person keeping exhibit

63.5. A person who, under arrangements made by the magistrates' court officer, keeps a document or object exhibited in the proceedings in the magistrates' court must-

(a)keep that exhibit until-

(i)6 weeks after the conclusion of those proceedings, or

(ii)the conclusion of any proceedings in the Crown Court that begin within that 6 weeks,

unless the magistrates' court or the Crown Court otherwise directs; and

(b)provide the Crown Court with any such document or object for which the Crown Court officer asks, within such period as the Crown Court officer may require.

Reference by the Criminal Cases Review Commission

63.6.-(1) The Crown Court officer must, as soon as practicable, serve a reference by the Criminal Cases Review Commission on-

(a)the appellant;

(b)every other party; and

(c)the magistrates' court officer.

(2) The appellant may serve an appeal notice on-

(a)the Crown Court officer; and

(b)every other party,

not more than 21 days later.

(3) The Crown Court must treat the reference as the appeal notice if the appellant does not serve an appeal notice.

Hearings and decisions

63.7.-(1) The Crown Court as a general rule must hear in public an appeal or reference to which this Part applies, but-

(a)may order any hearing to be in private; and

(b)where a hearing is about a public interest ruling, must hold that hearing in private.

(2) The Crown Court officer must give as much notice as reasonably practicable of every hearing to-

(a)the parties;

(b)any party's custodian; and

(c)any other person whom the Crown Court requires to be notified.

(3) The Crown Court officer must serve every decision on-

(a)the parties;

(b)any other person whom the Crown Court requires to be served; and

(c)the magistrates' court officer and any party's custodian, where the decision determines an appeal.

(4) But where a hearing or decision is about a public interest ruling, the Crown Court officer must not-

(a)give notice of that hearing to; or

(b)serve that decision on,

anyone other than the prosecutor who applied for that ruling, unless the court otherwise directs.

[Note. See also Part 22 (Disclosure).]

Abandoning an appeal

63.8.-(1) The appellant-

(a)may abandon an appeal without the Crown Court's permission, by serving a notice of abandonment on-

(i)the magistrates' court officer,

(ii)the Crown Court officer, and

(iii)every other party

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.

(2) A notice of abandonment must be signed by or on behalf of the appellant.

(3) Where an appellant who is on bail pending appeal abandons an appeal-

(a)the appellant must surrender to custody as directed by the magistrates' court officer; and

(b)any conditions of bail apply until then.

[Note. The Practice Direction sets out a form of notice of abandonment for use in connection with this rule.

Where an appellant abandons an appeal to the Crown Court, both the Crown Court and the magistrates' court have power to make a costs order against that appellant in favour of the respondent: see section 52 of the Senior Courts Act 1981(677) and section 109 of the Magistrates' Courts Act 1980(678). Part 76 contains rules about costs on abandoning an appeal.]

Court's power to vary requirements under this Part

63.9. The Crown Court may-

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

(b)allow an appellant to vary an appeal notice that that appellant has served;

(c)direct that an appeal notice be served on any person;

(d)allow an appeal notice or a notice of abandonment to be in a different form to one set out in the Practice Direction, or to be presented orally.

Constitution of the Crown Court

63.10. On the hearing of an appeal-

(a)the general rule is that the Crown Court must comprise-

(i)a judge of the High Court, a Circuit judge or a Recorder, and

(ii)no less than two and no more than four justices of the peace, none of whom took part in the decision under appeal; and

(b)if the appeal is from a youth court-

(i)each justice of the peace must be qualified to sit as a member of a youth court, and

(ii)the Crown Court must include a man and a woman; but

(c)the Crown Court may include only one justice of the peace and need not include both a man and a woman if-

(i)the presiding judge decides that otherwise the start of the appeal hearing will be delayed unreasonably, or

(ii)one or more of the justices of the peace who started hearing the appeal is absent.

[Note. See sections 73 and 74 of the Senior Courts Act 1981(679), section 45 of the Children and Young Persons Act 1933(680) and section 9 of the Courts Act 2003(681).]

PART 64APPEAL TO THE HIGH COURT BY WAY OF CASE STATED

Application to a magistrates' court to state a case

64.1.-(1) An application under section 111(1) of the Magistrates' Courts Act 1980(682) shall be made in writing and signed by or on behalf of the applicant and shall identify the question or questions of law or jurisdiction on which the opinion of the High Court is sought.

(2) Where one of the questions on which the opinion of the High Court is sought is whether there was evidence on which the magistrates' court could come to its decision, the particular finding of fact made by the magistrates' court which it is claimed cannot be supported by the evidence before the magistrates' court shall be specified in such application.

(3) Any such application shall be sent to a court officer for the magistrates' court whose decision is questioned.

[Note. For the procedure to be followed in the High Court, see Part 52 of The Civil Procedure Rules 1998(683).]

Consideration of a draft case by a magistrates' court

64.2.-(1) Within 21 days after receipt of an application made in accordance with rule 64.1, a court officer for the magistrates' court whose decision is questioned shall, unless the justices refuse to state a case under section 111(5) of the Magistrates' Courts Act 1980, send a draft case in which are stated the matters required under rule 64.6 (content of case stated) to the applicant or his legal representative and shall send a copy thereof to the respondent or his legal representative.

(2) Within 21 days after receipt of the draft case under paragraph (1), each party may make representations thereon. Any such representations shall be in writing and signed by or on behalf of the party making them and shall be sent to the magistrates' court officer.

(3) Where the justices refuse to state a case under section 111(5) of the 1980 Act and they are required by a mandatory order of the High Court under section 111(6) to do so, this rule shall apply as if in paragraph (1)-

(a)for the words -�receipt of an application made in accordance with rule 64.1' there were substituted the words -�the date on which a mandatory order under section 111(6) of the 1980 Act is made'; and

(b)the words -�unless the justices refuse to state a case under section 111(5) of the 1980 Act' were omitted.

Preparation and submission of final case to a magistrates' court

64.3.-(1) Within 21 days after the latest day on which representations may be made under rule 64.2, the justices whose decision is questioned shall make such adjustments, if any, to the draft case prepared for the purposes of that rule as they think fit, after considering any such representations, and shall state and sign the case.

(2) A case may be stated on behalf of the justices whose decision is questioned by any 2 or more of them and may, if the justices so direct, be signed on their behalf by the justices' clerk.

(3) Forthwith after the case has been stated and signed a court officer for the court shall send it to the applicant or his legal representative, together with any statement required by rule 64.4.

Extension of time limits by a magistrates' court

64.4.-(1) If a magistrates' court officer is unable to send to the applicant a draft case under rule 64.2(1) within the time required by that paragraph, he shall do so as soon as practicable thereafter and the provisions of that rule shall apply accordingly; but in that event a court officer shall attach to the draft case, and to the final case when it is sent to the applicant or his legal representative under rule 64.3(3), a statement of the delay and the reasons for it.

(2) If a magistrates' court officer receives an application in writing from or on behalf of the applicant or the respondent for an extension of the time within which representations on the draft case may be made under rule 64.2(2), together with reasons in writing for it, the justices' clerk may, by notice in writing sent to the applicant, or respondent as the case may be, by the magistrates' court officer, extend the time and the provisions of that paragraph and of rule 64.3 shall apply accordingly; but in that event the court officer shall attach to the final case, when it is sent to the applicant or his legal representative under rule 64.3(3), a statement of the extension and the reasons for it.

(3) If the justices are unable to state a case within the time required by rule 64.3(1), they shall do so as soon as practicable thereafter and the provisions of that rule shall apply accordingly; but in that event a court officer shall attach to the final case, when it is sent to the applicant or his legal representative under rule 64.3(3), a statement of the delay and the reasons for it.

Content of case stated by a magistrates' court

64.5.-(1) A case stated by the magistrates' court shall state the facts found by the court and the question or questions of law or jurisdiction on which the opinion of the High Court is sought.

(2) Where one of the questions on which the opinion of the High Court is sought is whether there was evidence on which the magistrates' court could come to its decision, the particular finding of fact which it is claimed cannot be supported by the evidence before the magistrates' court shall be specified in the case.

(3) Unless one of the questions on which the opinion of the High Court is sought is whether there was evidence on which the magistrates' court could come to its decision, the case shall not contain a statement of evidence.

Application to the Crown Court to state a case

64.6.-(1) An application under section 28 of the Senior Courts Act 1981(684) to the Crown Court to state a case for the opinion of the High Court shall be made in writing to a court officer within 21 days after the date of the decision in respect of which the application is made.

(2) The application shall state the ground on which the decision of the Crown Court is questioned.

(3) After making the application, the applicant shall forthwith send a copy of it to the parties to the proceedings in the Crown Court.

(4) On receipt of the application, the Crown Court officer shall forthwith send it to the judge who presided at the proceedings in which the decision was made.

(5) On receipt of the application, the judge shall inform the Crown Court officer as to whether or not he has decided to state a case and that officer shall give notice in writing to the applicant of the judge's decision.

(6) If the judge considers that the application is frivolous, he may refuse to state a case and shall in that case, if the applicant so requires, cause a certificate stating the reasons for the refusal to be given to him.

(7) If the judge decides to state a case, the procedure to be followed shall, unless the judge in a particular case otherwise directs, be the procedure set out in paragraphs (8) to (12) of this rule.

(8) The applicant shall, within 21 days of receiving the notice referred to in paragraph (5), draft a case and send a copy of it to the Crown Court officer and to the parties to the proceedings in the Crown Court.

(9) Each party to the proceedings in the Crown Court shall, within 21 days of receiving a copy of the draft case under paragraph (8), either-

(a)give notice in writing to the applicant and the Crown Court officer that he does not intend to take part in the proceedings before the High Court;

(b)indicate in writing on the copy of the draft case that he agrees with it and send the copy to a court officer; or

(c)draft an alternative case and send it, together with the copy of the applicant's case, to the Crown Court officer.

(10) The judge shall consider the applicant's draft case and any alternative draft case sent to the Crown Court officer under paragraph (9)(c).

(11) If the Crown Court so orders, the applicant shall, before the case is stated and delivered to him, enter before the Crown Court officer into a recognizance, with or without sureties and in such sum as the Crown Court considers proper, having regard to the means of the applicant, conditioned to prosecute the appeal without delay.

(12) The judge shall state and sign a case within 14 days after either-

(a)the receipt of all the documents required to be sent to a court officer under paragraph (9); or

(b)the expiration of the period of 21 days referred to in that paragraph,

whichever is the sooner.

(13) A case stated by the Crown Court shall state the facts found by the Crown Court, the submissions of the parties (including any authorities relied on by the parties during the course of those submissions), the decision of the Crown Court in respect of which the application is made and the question on which the opinion of the High Court is sought.

(14) Any time limit referred to in this rule may be extended either before or after it expires by the Crown Court.

(15) If the judge decides not to state a case but the stating of a case is subsequently required by a mandatory order of the High Court, paragraphs (7) to (14) shall apply to the stating of the case save that-

(a)in paragraph (7) the words -�If the judge decides to state a case' shall be omitted; and

(b)in paragraph (8) for the words -�receiving the notice referred to in paragraph (5)' there shall be substituted the words -�the day on which the mandatory order was made'.

(16) The judge may determine an application to which this rule applies-�

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

(b)without a hearing.

PART 65APPEAL TO THE COURT OF APPEAL: GENERAL RULES

When this Part applies

65.1.-(1) This Part applies to all the applications, appeals and references to the Court of Appeal to which Parts 66, 67, 68, 69, 70 and 74 apply.

(2) In this Part and in those, unless the context makes it clear that something different is meant -�court' means the Court of Appeal or any judge of that court.

[Note. See rule 2.2 for the usual meaning of -�court'.

Under section 53 of the Senior Courts Act 1981(685), the criminal division of the Court of Appeal exercises jurisdiction in the appeals and references to which Parts 66, 67, 68, 69 and 70 apply.

Under section 55 of that Act(686), the Court of Appeal must include at least two judges, and for some purposes at least three.

For the powers of the Court of Appeal that may be exercised by one judge of that court or by the Registrar, see sections 31, 31A, 31B, 31C and 44 of the Criminal Appeal Act 1968(687); section 49 of the Criminal Justice Act 2003(688); The Criminal Justice Act 2003 (Mandatory Life Sentences: Appeals in Transitional Cases) Order 2005(689); The Serious Organised Crime and Police Act 2005 (Appeals under section 74) Order 2006(690); The Serious Crime Act 2007 (Appeals under Section 24) Order 2008(691); and the power conferred by section 53(4) of the 1981 Act.]

Case management in the Court of Appeal

65.2.-(1) The court and the parties have the same duties and powers as under Part 3 (case management).

(2) The Registrar-

(a)must fulfil the duty of active case management under rule 3.2; and

(b)in fulfilling that duty may exercise any of the powers of case management under-

(i)rule 3.5 (the court's general powers of case management),

(ii)rule 3.9(3) (requiring a certificate of readiness), and

(iii)rule 3.10 (requiring a party to identify intentions and anticipated requirements)

subject to the directions of the court.

(3) The Registrar must nominate a case progression officer under rule 3.4.

Power to vary requirements

65.3. The court or the Registrar may-

(a)shorten a time limit or extend it (even after it has expired) unless that is inconsistent with other legislation;

(b)allow a party to vary any notice that that party has served;

(c)direct that a notice or application be served on any person;

(d)allow a notice or application to be in a different form, or presented orally.

[Note. The time limit for serving an appeal notice-

(a)under section 18 of the Criminal Appeal Act 1968(692) on an appeal against conviction or sentence, and

(b)under section 18A of that Act(693) on an appeal against a finding of contempt of court

may be extended but not shortened: see rule 68.2.

The time limit for serving an application for permission to refer a sentencing case under section 36 of the Criminal Justice Act 1988(694) may be neither extended nor shortened: see rule 70.2(2).

The time limits in rule 74.2 for applying to the Court of Appeal for permission to appeal or refer a case to the Supreme Court may be extended or shortened only as explained in the note to that rule.]

Application for extension of time

65.4. A person who wants an extension of time within which to serve a notice or make an application must-

(a)apply for that extension of time when serving that notice or making that application; and

(b)give the reasons for the application for an extension of time.

Renewing an application refused by a judge or the Registrar

65.5.-(1) This rule applies where a party with the right to do so wants to renew-

(a)to a judge of the Court of Appeal an application refused by the Registrar; or

(b)to the Court of Appeal an application refused by a judge of that court.

(2) That party must-

(a)renew the application in the form set out in the Practice Direction, signed by or on behalf of the applicant;

(b)serve the renewed application on the Registrar not more than 14 days after-

(i)the refusal of the application that the applicant wants to renew; or

(ii)the Registrar serves that refusal on the applicant, if the applicant was not present in person or by live link when the original application was refused.

[Note. The time limit of 14 days under this rule is reduced to 5 days where Parts 66, 67 or 69 apply: see rules 66.7, 67.10 and 69.7.

For the right to renew an application to a judge or to the Court of Appeal, see sections 31(3), 31C and 44 of the Criminal Appeal Act 1968, The Criminal Justice Act 2003 (Mandatory Life Sentences: Appeals in Transitional Cases) Order 2005(695), The Serious Organised Crime and Police Act 2005 (Appeals under section 74) Order 2006(696) and The Serious Crime Act 2007 (Appeals under Section 24) Order 2008.

A party has no right under section 31C of the 1968 Act to renew to the Court of Appeal an application for procedural directions refused by a judge, but in some circumstances a case management direction might be varied: see rule 3.6.

If an applicant does not renew an application that a judge has refused, including an application for permission to appeal, the Registrar will treat it as if it had been refused by the Court of Appeal.

Under section 22 of the Criminal Appeal Act 1968(697), the Court of Appeal may direct that an appellant who is in custody is to attend a hearing by live link.]

Hearings

65.6.-(1) The general rule is that the Court of Appeal must hear in public-

(a)an application, including an application for permission to appeal; and

(b)an appeal or reference,

but it may order any hearing to be in private.

(2) Where a hearing is about a public interest ruling, that hearing must be in private unless the court otherwise directs.

(3) Where the appellant wants to appeal against an order restricting public access to a trial, the court-

(a)may decide without a hearing-

(i)an application, including an application for permission to appeal, and

(ii)an appeal; but

(b)must announce its decision on such an appeal at a hearing in public.

(4) Where the appellant wants to appeal or to refer a case to the Supreme Court, the court-

(a)may decide without a hearing an application-

(i)for permission to appeal or to refer a sentencing case, or

(ii)to refer a point of law; but

(b)must announce its decision on such an application at a hearing in public.

(5) A judge of the Court of Appeal and the Registrar may exercise any of their powers-

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

(b)without a hearing.

[Note. For the procedure on an appeal against an order restricting public access to a trial, see Part 69.]

Notice of hearings and decisions

65.7.-(1) The Registrar must give as much notice as reasonably practicable of every hearing to-

(a)the parties;

(b)any party's custodian;

(c)any other person whom the court requires to be notified; and

(d)the Crown Court officer, where Parts 66, 67 or 69 apply.

(2) The Registrar must serve every decision on-

(a)the parties;

(b)any other person whom the court requires to be served; and

(c)the Crown Court officer and any party's custodian, where the decision determines an appeal or application for permission to appeal.

(3) But where a hearing or decision is about a public interest ruling, the Registrar must not-

(a)give notice of that hearing to; or

(b)serve that decision on,

anyone other than the prosecutor who applied for that ruling, unless the court otherwise directs.

Duty of Crown Court officer

65.8.-(1) The Crown Court officer must provide the Registrar with any document, object or information for which the Registrar asks, within such period as the Registrar may require.

(2) Where someone may appeal to the Court of Appeal, the Crown Court officer must keep any document or object exhibited in the proceedings in the Crown Court, or arrange for it to be kept by some other appropriate person, until-

(a)6 weeks after the conclusion of those proceedings; or

(b)the conclusion of any appeal proceedings that begin within that 6 weeks,

unless the court, the Registrar or the Crown Court otherwise directs.

(3) Where Part 66 applies (appeal to the Court of Appeal against ruling at preparatory hearing), the Crown Court officer must as soon as practicable serve on the appellant a transcript or note of-

(a)each order or ruling against which the appellant wants to appeal; and

(b)the decision by the Crown Court judge on any application for permission to appeal.

(4) Where Part 67 applies (appeal to the Court of Appeal against ruling adverse to prosecution), the Crown Court officer must as soon as practicable serve on the appellant a transcript or note of-

(a)each ruling against which the appellant wants to appeal;

(b)the decision by the Crown Court judge on any application for permission to appeal; and

(c)the decision by the Crown Court judge on any request to expedite the appeal.

(5) Where Part 68 applies (appeal to the Court of Appeal about conviction or sentence), the Crown Court officer must as soon as practicable serve on the Registrar-

(a)the appeal notice and any accompanying application that the appellant serves on the Crown Court officer;

(b)any Crown Court judge's certificate that the case is fit for appeal;

(c)the decision on any application at the Crown Court centre for bail pending appeal;

(d)such of the Crown Court case papers as the Registrar requires; and

(e)such transcript of the Crown Court proceedings as the Registrar requires.

(6) Where Part 69 applies (appeal to the Court of Appeal regarding reporting or public access) and an order is made restricting public access to a trial, the Crown Court officer must-

(a)immediately notify the Registrar of that order, if the appellant has given advance notice of intention to appeal; and

(b)as soon as practicable provide the applicant for that order with a transcript or note of the application.

[Note. See also section 87(4) of the Senior Courts Act 1981(698) and rules 5.5 (recording and transcription of proceedings in the Crown Court), 65.9 (duty of person transcribing record of proceedings in the Crown Court) and 65.10 (duty of person keeping exhibit).]

Duty of person transcribing proceedings in the Crown Court

65.9. A person who transcribes a recording of proceedings in the Crown Court under arrangements made by the Crown Court officer must provide the Registrar with any transcript for which the Registrar asks, within such period as the Registrar may require.

[Note. See also section 32 of the Criminal Appeal Act 1968(699) and rule 5.5 (recording and transcription of proceedings in the Crown Court).]

Duty of person keeping exhibit

65.10. A person who under arrangements made by the Crown Court officer keeps a document or object exhibited in the proceedings in the Crown Court must-

(a)keep that exhibit until-

(i)6 weeks after the conclusion of the Crown Court proceedings, or

(ii)the conclusion of any appeal proceedings that begin within that 6 weeks,

unless the court, the Registrar or the Crown Court otherwise directs; and

(b)provide the Registrar with any such document or object for which the Registrar asks, within such period as the Registrar may require.

[Note. See also rule 65.8(2) (duty of Crown Court officer).]

Registrar's duty to provide copy documents for appeal or reference

65.11. Unless the court otherwise directs, for the purposes of an appeal or reference-

(a)the Registrar must-

(i)provide a party with a copy of any document or transcript held by the Registrar for such purposes, or

(ii)allow a party to inspect such a document or transcript,

on payment by that party of any charge fixed by the Treasury; but

(b)the Registrar must not provide a copy or allow the inspection of-

(i)a document provided only for the court and the Registrar, or

(ii)a transcript of a public interest ruling or of an application for such a ruling.

[Note. Section 21 of the Criminal Appeal Act 1968 requires the Registrar to collect, prepare and provide documents needed by the court.]

Declaration of incompatibility with a Convention right

65.12.-(1) This rule applies where a party-

(a)wants the court to make a declaration of incompatibility with a Convention right under section 4 of the Human Rights Act 1998(700); or

(b)raises an issue that the Registrar thinks may lead the court to make such a declaration.

(2) The Registrar must serve notice on-

(a)the relevant person named in the list published under section 17(1) of the Crown Proceedings Act 1947(701); or

(b)the Treasury Solicitor, if it is not clear who is the relevant person.

(3) That notice must include or attach details of-

(a)the legislation affected and the Convention right concerned;

(b)the parties to the appeal; and

(c)any other information or document that the Registrar thinks relevant.

(4) A person who has a right under the 1998 Act to become a party to the appeal must-

(a)serve notice on-

(i)the Registrar, and

(ii)the other parties,

if that person wants to exercise that right; and

(b)in that notice-

(i)indicate the conclusion that that person invites the court to reach on the question of incompatibility, and

(ii)identify each ground for that invitation, concisely outlining the arguments in support.

(5) The court must not make a declaration of incompatibility-

(a)less than 21 days after the Registrar serves notice under paragraph (2); and

(b)without giving any person who serves a notice under paragraph (4) an opportunity to make representations at a hearing.

Abandoning an appeal

65.13.-(1) This rule applies where an appellant wants to-

(a)abandon-

(i)an application to the court for permission to appeal, or

(ii)an appeal; or

(b)reinstate such an application or appeal after abandoning it.

(2) The appellant-

(a)may abandon such an application or appeal without the court's permission by serving a notice of abandonment on-

(i)the Registrar, and

(ii)any respondent

before any hearing of the application or appeal; but

(b)at any such hearing, may only abandon that application or appeal with the court's permission.

(3) A notice of abandonment must be in the form set out in the Practice Direction, signed by or on behalf of the appellant.

(4) On receiving a notice of abandonment the Registrar must-

(a)date it;

(b)serve a dated copy on-

(i)the appellant,

(ii)the appellant's custodian, if any,

(iii)the Crown Court officer, and

(iv)any other person on whom the appellant or the Registrar served the appeal notice; and

(c)treat the application or appeal as if it had been refused or dismissed by the Court of Appeal.

(5) An appellant who wants to reinstate an application or appeal after abandoning it must-

(a)apply in writing, with reasons; and

(b)serve the application on the Registrar.

[Note. The Court of Appeal has power only in exceptional circumstances to allow an appellant to reinstate an application or appeal that has been abandoned.]

Abandoning a ground of appeal or opposition

65.14.-(1) This rule applies where a party wants to abandon-

(a)a ground of appeal identified in an appeal notice; or

(b)a ground of opposition identified in a respondent's notice.

(2) Such a party must give written notice to-

(a)the Registrar; and

(b)every other party,

before any hearing at which that ground will be considered by the court.

PART 66APPEAL TO THE COURT OF APPEAL AGAINST RULING AT PREPARATORY HEARING

When this Part applies

66.1.-(1) This Part applies where a party wants to appeal under-

(a)section 9(11) of the Criminal Justice Act 1987(702) or section 35(1) of the Criminal Procedure and Investigations Act 1996(703); or

(b)section 47(1) of the Criminal Justice Act 2003(704).

(2) A reference to an -�appellant' in this Part is a reference to such a party.

[Note. Under section 9(11) of the Criminal Justice Act 1987 (which applies to serious or complex fraud cases) and under section 35(1) of the Criminal Procedure and Investigations Act 1996 (which applies to other complex, serious or long cases) a party may appeal to the Court of Appeal against an order made at a preparatory hearing in the Crown Court.

Under section 47(1) of the Criminal Justice Act 2003 a party may appeal to the Court of Appeal against an order in the Crown Court that because of jury tampering a trial will continue without a jury or that there will be a new trial without a jury.

Part 15 contains rules about preparatory hearings.

The rules in Part 65 also apply where this Part applies.]

Service of appeal notice

66.2.-(1) An appellant must serve an appeal notice on-

(a)the Crown Court officer;

(b)the Registrar; and

(c)every party directly affected by the order or ruling against which the appellant wants to appeal.

(2) The appellant must serve the appeal notice not more than 5 business days after-

(a)the order or ruling against which the appellant wants to appeal; or

(b)the Crown Court judge gives or refuses permission to appeal.

Form of appeal notice

66.3.-(1) An appeal notice must be in the form set out in the Practice Direction.

(2) The appeal notice must-

(a)specify each order or ruling against which the appellant wants to appeal;

(b)identify each ground of appeal on which the appellant relies, numbering them consecutively (if there is more than one) and concisely outlining each argument in support;

(c)summarise the relevant facts;

(d)identify any relevant authorities;

(e)include or attach any application for the following, with reasons-

(i)permission to appeal, if the appellant needs the court's permission,

(ii)an extension of time within which to serve the appeal notice,

(iii)a direction to attend in person a hearing that the appellant could attend by live link, if the appellant is in custody;

(f)include a list of those on whom the appellant has served the appeal notice; and

(g)attach-

(i)a transcript or note of each order or ruling against which the appellant wants to appeal,

(ii)all relevant skeleton arguments considered by the Crown Court judge,

(iii)any written application for permission to appeal that the appellant made to the Crown Court judge,

(iv)a transcript or note of the decision by the Crown Court judge on any application for permission to appeal, and

(v)any other document or thing that the appellant thinks the court will need to decide the appeal.

[Note. An appellant needs the court's permission to appeal in every case to which this Part applies unless the Crown Court judge gives permission.]

Crown Court judge's permission to appeal

66.4.-(1) An appellant who wants the Crown Court judge to give permission to appeal must-

(a)apply orally, with reasons, immediately after the order or ruling against which the appellant wants to appeal; or

(b)apply in writing and serve the application on-

(i)the Crown Court officer, and

(ii)every party directly affected by the order or ruling

not more than 2 business days after that order or ruling.

(2) A written application must include the same information (with the necessary adaptations) as an appeal notice.

[Note. For the Crown Court judge's power to give permission to appeal, see section 9(11) of the Criminal Justice Act 1987, section 35(1) of the Criminal Procedure and Investigations Act 1996 and section 47(2) of the Criminal Justice Act 2003.]

Respondent's notice

66.5.-(1) A party on whom an appellant serves an appeal notice may serve a respondent's notice, and must do so if-

(a)that party wants to make representations to the court; or

(b)the court so directs.

(2) Such a party must serve the respondent's notice on-

(a)the appellant;

(b)the Crown Court officer;

(c)the Registrar; and

(d)any other party on whom the appellant served the appeal notice.

(3) Such a party must serve the respondent's notice not more than 5 business days after-

(a)the appellant serves the appeal notice; or

(b)a direction to do so.

(4) The respondent's notice must be in the form set out in the Practice Direction.

(5) The respondent's notice must-

(a)give the date on which the respondent was served with the appeal notice;

(b)identify each ground of opposition on which the respondent relies, numbering them consecutively (if there is more than one), concisely outlining each argument in support and identifying the ground of appeal to which each relates;

(c)summarise any relevant facts not already summarised in the appeal notice;

(d)identify any relevant authorities;

(e)include or attach any application for the following, with reasons-

(i)an extension of time within which to serve the respondent's notice,

(ii)a direction to attend in person any hearing that the respondent could attend by live link, if the respondent is in custody;

(f)identify any other document or thing that the respondent thinks the court will need to decide the appeal.

Powers of Court of Appeal judge

66.6. A judge of the Court of Appeal may give permission to appeal as well as exercising the powers given by other legislation (including these Rules).

[Note. See section 31 of the Criminal Appeal Act 1968(705) and section 49 of the Criminal Justice Act 2003(706).]

Renewing applications

66.7. Rule 65.5 (renewing an application refused by a judge or the Registrar) applies with a time limit of 5 business days.

Right to attend hearing

66.8.-(1) A party who is in custody has a right to attend a hearing in public.

(2) The court or the Registrar may direct that such a party is to attend a hearing by live link.

[Note. See rule 65.6 (hearings).]

PART 67APPEAL TO THE COURT OF APPEAL AGAINST RULING ADVERSE TO PROSECUTION

When this Part applies

67.1.-(1) This Part applies where a prosecutor wants to appeal under section 58(2) of the Criminal Justice Act 2003(707).

(2) A reference to an -�appellant' in this Part is a reference to such a prosecutor.

[Note. Under section 58(2) of the Criminal Justice Act 2003 a prosecutor may appeal to the Court of Appeal against a ruling in the Crown Court. See also sections 57 and 59 to 61 of the 2003 Act.

The rules in Part 65 also apply where this Part applies.]

Decision to appeal

67.2.-(1) An appellant must tell the Crown Court judge of any decision to appeal-

(a)immediately after the ruling against which the appellant wants to appeal; or

(b)on the expiry of the time to decide whether to appeal allowed under paragraph (2).

(2) If an appellant wants time to decide whether to appeal-

(a)the appellant must ask the Crown Court judge immediately after the ruling; and

(b)the general rule is that the judge must not require the appellant to decide there and then but instead must allow until the next business day.

[Note. If the ruling against which the appellant wants to appeal is a ruling that there is no case to answer, the appellant may appeal against earlier rulings as well: see section 58(7) of the Criminal Justice Act 2003.

Under section 58(8) of the 2003 Act the appellant must agree that a defendant directly affected by the ruling must be acquitted if the appellant (a) does not get permission to appeal or (b) abandons the appeal.

The Crown Court judge may give permission to appeal and may expedite the appeal: see rules 67.5 and 67.6.]

Service of appeal notice

67.3.-(1) An appellant must serve an appeal notice on-

(a)the Crown Court officer;

(b)the Registrar; and

(c)every defendant directly affected by the ruling against which the appellant wants to appeal.

(2) The appellant must serve the appeal notice not later than-

(a)the next business day after telling the Crown Court judge of the decision to appeal, if the judge expedites the appeal; or

(b)5 business days after telling the Crown Court judge of that decision, if the judge does not expedite the appeal.

[Note. If the ruling against which the appellant wants to appeal is a public interest ruling, see rule 67.8.]

Form of appeal notice

67.4.-(1) An appeal notice must be in the form set out in the Practice Direction.

(2) The appeal notice must-

(a)specify each ruling against which the appellant wants to appeal;

(b)identify each ground of appeal on which the appellant relies, numbering them consecutively (if there is more than one) and concisely outlining each argument in support;

(c)summarise the relevant facts;

(d)identify any relevant authorities;

(e)include or attach any application for the following, with reasons-

(i)permission to appeal, if the appellant needs the court's permission,

(ii)an extension of time within which to serve the appeal notice,

(iii)expedition of the appeal, or revocation of a direction expediting the appeal;

(f)include a list of those on whom the appellant has served the appeal notice;

(g)attach-

(i)a transcript or note of each ruling against which the appellant wants to appeal,

(ii)all relevant skeleton arguments considered by the Crown Court judge,

(iii)any written application for permission to appeal that the appellant made to the Crown Court judge,

(iv)a transcript or note of the decision by the Crown Court judge on any application for permission to appeal,

(v)a transcript or note of the decision by the Crown Court judge on any request to expedite the appeal, and

(vi)any other document or thing that the appellant thinks the court will need to decide the appeal; and

(h)attach a form of respondent's notice for any defendant served with the appeal notice to complete if that defendant wants to do so.

[Note. An appellant needs the court's permission to appeal unless the Crown Court judge gives permission: see section 57(4) of the Criminal Justice Act 2003. For -�respondent's notice' see rule 67.7.]

Crown Court judge's permission to appeal

67.5.-(1) An appellant who wants the Crown Court judge to give permission to appeal must-

(a)apply orally, with reasons, immediately after the ruling against which the appellant wants to appeal; or

(b)apply in writing and serve the application on-

(i)the Crown Court officer, and

(ii)every defendant directly affected by the ruling

on the expiry of the time allowed under rule 67.2 to decide whether to appeal.

(2) A written application must include the same information (with the necessary adaptations) as an appeal notice.

(3) The Crown Court judge must allow every defendant directly affected by the ruling an opportunity to make representations.

(4) The general rule is that the Crown Court judge must decide whether or not to give permission to appeal on the day that the application for permission is made.

[Note. For the Crown Court judge's power to give permission to appeal, see section 57(4) of the Criminal Justice Act 2003.

Rule 67.5(3) does not apply where the appellant wants to appeal against a public interest ruling: see rule 67.8(5).]

Expediting an appeal

67.6.-(1) An appellant who wants the Crown Court judge to expedite an appeal must ask, giving reasons, on telling the judge of the decision to appeal.

(2) The Crown Court judge must allow every defendant directly affected by the ruling an opportunity to make representations.

(3) The Crown Court judge may revoke a direction expediting the appeal unless the appellant has served the appeal notice.

[Note. For the Crown Court judge's power to expedite the appeal, see section 59 of the Criminal Justice Act 2003.

Rule 67.6(2) does not apply where the appellant wants to appeal against a public interest ruling: see rule 67.8(5).]

Respondent's notice

67.7.-(1) A defendant on whom an appellant serves an appeal notice may serve a respondent's notice, and must do so if-

(a)the defendant wants to make representations to the court; or

(b)the court so directs.

(2) Such a defendant must serve the respondent's notice on-

(a)the appellant;

(b)the Crown Court officer;

(c)the Registrar; and

(d)any other defendant on whom the appellant served the appeal notice.

(3) Such a defendant must serve the respondent's notice-

(a)not later than the next business day after-

(i)the appellant serves the appeal notice, or

(ii)a direction to do so

if the Crown Court judge expedites the appeal; or

(b)not more than 5 business days after-

(i)the appellant serves the appeal notice, or

(ii)a direction to do so

if the Crown Court judge does not expedite the appeal.

(4) The respondent's notice must be in the form set out in the Practice Direction.

(5) The respondent's notice must-

(a)give the date on which the respondent was served with the appeal notice;

(b)identify each ground of opposition on which the respondent relies, numbering them consecutively (if there is more than one), concisely outlining each argument in support and identifying the ground of appeal to which each relates;

(c)summarise any relevant facts not already summarised in the appeal notice;

(d)identify any relevant authorities;

(e)include or attach any application for the following, with reasons-

(i)an extension of time within which to serve the respondent's notice,

(ii)a direction to attend in person any hearing that the respondent could attend by live link, if the respondent is in custody;

(f)identify any other document or thing that the respondent thinks the court will need to decide the appeal.

Public interest ruling

67.8.-(1) This rule applies where the appellant wants to appeal against a public interest ruling.

(2) The appellant must not serve on any defendant directly affected by the ruling-

(a)any written application to the Crown Court judge for permission to appeal; or

(b)an appeal notice,

if the appellant thinks that to do so in effect would reveal something that the appellant thinks ought not be disclosed.

(3) The appellant must not include in an appeal notice-

(a)the material that was the subject of the ruling; or

(b)any indication of what sort of material it is,

if the appellant thinks that to do so in effect would reveal something that the appellant thinks ought not be disclosed.

(4) The appellant must serve on the Registrar with the appeal notice an annex-

(a)marked to show that its contents are only for the court and the Registrar;

(b)containing whatever the appellant has omitted from the appeal notice, with reasons; and

(c)if relevant, explaining why the appellant has not served the appeal notice.

(5) Rules 67.5(3) and 67.6(2) do not apply.

[Note. Rules 67.5(3) and 67.6(2) require the Crown Court judge to allow a defendant to make representations about (i) giving permission to appeal and (ii) expediting an appeal.]

Powers of Court of Appeal judge

67.9. A judge of the Court of Appeal may-

(a)give permission to appeal;

(b)revoke a Crown Court judge's direction expediting an appeal; and

(c)where an appellant abandons an appeal, order a defendant's acquittal, his release from custody and the payment of his costs,

as well as exercising the powers given by other legislation (including these Rules).

[Note. See section 73 of the Criminal Justice Act 2003.]

Renewing applications

67.10. Rule 65.5 (renewing an application refused by a judge or the Registrar) applies with a time limit of 5 business days.

Right to attend hearing

67.11.-(1) A respondent who is in custody has a right to attend a hearing in public.

(2) The court or the Registrar may direct that such a respondent is to attend a hearing by live link.

[Note. See rule 65.6 (hearings).]

PART 68APPEAL TO THE COURT OF APPEAL ABOUT CONVICTION OR SENTENCE

When this Part applies

68.1.-(1) This Part applies where-

(a)a defendant wants to appeal under-

(i)Part 1 of the Criminal Appeal Act 1968(708),

(ii)section 274(3) of the Criminal Justice Act 2003(709),

(iii)paragraph 14 of Schedule 22 to the Criminal Justice Act 2003(710), or

(iv)section 42 of the Counter Terrorism Act 2008(711);

(b)the Criminal Cases Review Commission refers a case to the Court of Appeal under section 9 of the Criminal Appeal Act 1995(712);

(c)a prosecutor wants to appeal to the Court of Appeal under section 14A(5A) of the Football Spectators Act 1989(713);

(d)a party wants to appeal under section 74(8) of the Serious Organised Crime and Police Act 2005(714);

(e)a person found in contempt of court wants to appeal under section 13 of the Administration of Justice Act 1960(715) and section 18A of the Criminal Appeal Act 1968(716); or

(f)a person wants to appeal to the Court of Appeal under-

(i)section 24 of the Serious Crime Act 2007(717), or

(ii)regulation 3C or 3H of The Costs in Criminal Cases (General) Regulations 1986(718).

(2) A reference to an -�appellant' in this Part is a reference to such a party or person.

[Note. Under Part 1 (sections 1 to 32) of the Criminal Appeal Act 1968, a defendant may appeal against-

(a)a conviction (section 1 of the 1968 Act(719));

(b)a sentence (sections 9 and 10 of the 1968 Act(720));

(c)a verdict of not guilty by reason of insanity (section 12 of the 1968 Act);

(d)a finding of disability (section 15 of the 1968 Act(721));

(e)a hospital order, interim hospital order or supervision order under section 5 or 5A of the Criminal Procedure (Insanity) Act 1964(722) (section 16A of the 1968 Act(723)).

See section 50 of the 1968 Act(724) for the meaning of -�sentence'.

Under section 274(3) of the 2003 Act, a defendant sentenced to life imprisonment outside the United Kingdom, and transferred to serve the sentence in England and Wales, may appeal against the minimum term fixed by a High Court judge under section 82A of the Powers of Criminal Courts (Sentencing) Act 2000 or under section 269 of the 2003 Act.

Under paragraph 14 of Schedule 22 to the Criminal Justice Act 2003 a defendant sentenced to life imprisonment may appeal against the minimum term fixed on review by a High Court judge in certain cases.

Under section 42 of the Counter Terrorism Act 2008 a defendant may appeal against a decision of the Crown Court that an offence has a terrorist connection.

See section 13 of the Criminal Appeal Act 1995(725) for the circumstances in which the Criminal Cases Review Commission may refer a conviction, sentence, verdict or finding to the Court of Appeal.

Under section 14A(5A) of the Football Spectators Act 1989 a prosecutor may appeal against a failure by the Crown Court to make a football banning order.

Under section 74(8) of the Serious Organised Crime and Police Act 2005 a prosecutor or defendant may appeal against a review by a Crown Court judge of a sentence that was reduced because the defendant assisted the investigator or prosecutor.

Under section 13 of the Administration of Justice Act 1960 a person in respect of whom an order or decision is made by the Crown Court in the exercise of its jurisdiction to punish for contempt of court may appeal to the Court of Appeal.

Under section 24 of the Serious Crime Act 2007 a person who is the subject of a serious crime prevention order, or the relevant applicant authority, may appeal to the Court of Appeal against a decision of the Crown Court in relation to that order. In addition, any person who was given an opportunity to make representations in the proceedings by virtue of section 9(4) of the Act may appeal to the Court of Appeal against a decision of the Crown Court to make, vary or not vary a serious crime prevention order.

Under regulation 3C of The Costs in Criminal Cases (General) Regulations 1986, a legal representative against whom the Crown Court makes a wasted costs order under section 19A of the Prosecution of Offences Act 1985(726) and regulation 3B may appeal against that order to the Court of Appeal.

Under regulation 3H of The Costs in Criminal Cases (General) Regulations 1986, a third party against whom the Crown Court makes a costs order under section 19B of the Prosecution of Offences Act 1985(727) and regulation 3F may appeal against that order to the Court of Appeal.

The rules in Part 65 also apply where this Part applies.]

Service of appeal notice

68.2.-(1) The general rule is that an appellant must serve an appeal notice-

(a)on the Crown Court officer at the Crown Court centre where there occurred-

(i)the conviction, verdict, or finding,

(ii)the sentence, or

(iii)the order, or the failure to make an order

about which the appellant wants to appeal; and

(b)not more than-

(i)28 days after that occurred, or

(ii)21 days after the order, in a case in which the appellant appeals against a wasted or third party costs order.

(2) But an appellant must serve an appeal notice-

(a)on the Registrar instead where-

(i)the appeal is against a minimum term review decision under section 274(3) of, or paragraph 14 of Schedule 22 to, the Criminal Justice Act 2003, or

(ii)the Criminal Cases Review Commission refers the case to the court; and

(b)not more than 28 days after-

(i)the minimum term review decision about which the appellant wants to appeal, or

(ii)the Registrar serves notice that the Commission has referred a conviction.

[Note. The time limit for serving an appeal notice (a) on an appeal under Part 1 of the Criminal Appeal Act 1968 and (b) on an appeal against a finding of contempt of court is prescribed by sections 18 and 18A of the Criminal Appeal Act 1968. It may be extended, but not shortened.

For service of a reference by the Criminal Cases Review Commission, see rule 68.5.]

Form of appeal notice

68.3.-(1) An appeal notice must be in the form set out in the Practice Direction.

(2) The appeal notice must-

(a)specify-

(i)the conviction, verdict, or finding,

(ii)the sentence, or

(iii)the order, or the failure to make an order

about which the appellant wants to appeal;

(b)identify each ground of appeal on which the appellant relies, numbering them consecutively (if there is more than one) and concisely outlining each argument in support;

(c)identify the transcript that the appellant thinks the court will need, if the appellant wants to appeal against a conviction;

(d)identify the relevant sentencing powers of the Crown Court, if sentence is in issue;

(e)where the Criminal Cases Review Commission refers a case to the court, explain how each ground of appeal relates (if it does) to the reasons for the reference;

(f)summarise the relevant facts;

(g)identify any relevant authorities;

(h)include or attach any application for the following, with reasons-

(i)permission to appeal, if the appellant needs the court's permission,

(ii)an extension of time within which to serve the appeal notice,

(iii)bail pending appeal,

(iv)a direction to attend in person a hearing that the appellant could attend by live link, if the appellant is in custody,

(v)the introduction of evidence, including hearsay evidence and evidence of bad character,

(vi)an order requiring a witness to attend court,

(vii)a direction for special measures for a witness,

(viii)a direction for special measures for the giving of evidence by the appellant;

(i)identify any other document or thing that the appellant thinks the court will need to decide the appeal.

[Note. In some legislation, including the Criminal Appeal Act 1968, permission to appeal is described as -�leave to appeal'.

An appellant needs the court's permission to appeal in every case to which this Part applies, except where-

(a)the Criminal Cases Review Commission refers the case;

(b)the appellant appeals against-

(i)an order or decision made in the exercise of jurisdiction to punish for contempt of court, or

(ii)a wasted or third party costs order; or

(c)the Crown Court judge certifies under sections 1(2)(a), 11(1A), 12(b), 15(2)(b) or 16A(2)(b) of the Criminal Appeal Act 1968(728), under section 81(1B) of the Senior Courts Act 1981(729), under section 14A(5B) of the Football Spectators Act 1989(730), or under section 24(4) of the Serious Crime Act 2007, that a case is fit for appeal.

A judge of the Court of Appeal may give permission to appeal under section 31 of the Criminal Appeal Act 1968(731).]

Crown Court judge's certificate that case is fit for appeal

68.4.-(1) An appellant who wants the Crown Court judge to certify that a case is fit for appeal must-

(a)apply orally, with reasons, immediately after there occurs-

(i)the conviction, verdict, or finding,

(ii)the sentence, or

(iii)the order, or the failure to make an order

about which the appellant wants to appeal; or

(b)apply in writing and serve the application on the Crown Court officer not more than 14 days after that occurred.

(2) A written application must include the same information (with the necessary adaptations) as an appeal notice.

[Note. The Crown Court judge may certify that a case is fit for appeal under sections 1(2)(b), 11(1A), 12(b), 15(2)(b) or 16A(2)(b) of the Criminal Appeal Act 1968, under section 81(1B) of the Senior Courts Act 1981, under section 14A(5B) of the Football Spectators Act 1989 or under section 24(4) of the Serious Crime Act 2007.

See also rule 68.2 (service of appeal notice in all cases).]

Reference by Criminal Cases Review Commission

68.5.-(1) The Registrar must serve on the appellant a reference by the Criminal Cases Review Commission.

(2) The court must treat that reference as the appeal notice if the appellant does not serve such a notice under rule 68.2.

Respondent's notice

68.6.-(1) The Registrar-

(a)may serve an appeal notice on any party directly affected by the appeal; and

(b)must do so if the Criminal Cases Review Commission refers a conviction, verdict, finding or sentence to the court.

(2) Such a party may serve a respondent's notice, and must do so if-

(a)that party wants to make representations to the court; or

(b)the court or the Registrar so directs.

(3) Such a party must serve the respondent's notice on-

(a)the appellant;

(b)the Registrar; and

(c)any other party on whom the Registrar served the appeal notice.

(4) Such a party must serve the respondent's notice-

(a)not more than 14 days after the Registrar serves-

(i)the appeal notice, or

(ii)a direction to do so; or

(b)not more than 28 days after the Registrar serves notice that the Commission has referred a conviction.

(5) The respondent's notice must be in the form set out in the Practice Direction.

(6) The respondent's notice must-

(a)give the date on which the respondent was served with the appeal notice;

(b)identify each ground of opposition on which the respondent relies, numbering them consecutively (if there is more than one), concisely outlining each argument in support and identifying the ground of appeal to which each relates;

(c)identify the relevant sentencing powers of the Crown Court, if sentence is in issue;

(d)summarise any relevant facts not already summarised in the appeal notice;

(e)identify any relevant authorities;

(f)include or attach any application for the following, with reasons-

(i)an extension of time within which to serve the respondent's notice,

(ii)bail pending appeal,

(iii)a direction to attend in person a hearing that the respondent could attend by live link, if the respondent is in custody,

(iv)the introduction of evidence, including hearsay evidence and evidence of bad character,

(v)an order requiring a witness to attend court,

(vi)a direction for special measures for a witness; and

(g)identify any other document or thing that the respondent thinks the court will need to decide the appeal.

[Note. Part II of the Practice Direction sets out the circumstances in which the Registrar usually will serve a defendant's appeal notice on the prosecutor.]

Adaptation of rules about introducing evidence

68.7.-(1) The following Parts apply with such adaptations as the court or the Registrar may direct-

(a)Part 29 (measures to assist a witness or defendant to give evidence);

(b)Part 34 (hearsay evidence);

(c)Part 35 (evidence of bad character); and

(d)Part 36 (evidence of a complainant's previous sexual behaviour).

(2) But the general rule is that-

(a)a respondent who opposes an appellant's application to which one of those Parts applies must do so in the respondent's notice, with reasons;

(b)an appellant who opposes a respondent's application to which one of those Parts applies must serve notice, with reasons, on-

(i)the Registrar, and

(ii)the respondent

not more than 14 days after service of the respondent's notice; and

(c)the court or the Registrar may give directions with or without a hearing.

[Note. An application to introduce evidence or for directions about evidence must be included in, or attached to, an appeal notice or a respondent's notice: see rule 68.3 and 68.6(6).

Under section 23 of the Criminal Appeal Act 1968(732), the Court of Appeal may allow the introduction of evidence that was not introduced at trial.

See also Part 27 (witness statements) and Part 33 (expert evidence).]

Application for bail pending appeal or retrial

68.8.-(1) This rule applies where a party wants to make an application to the court about bail pending appeal or retrial.

(2) That party must serve an application in the form set out in the Practice Direction on-

(a)the Registrar, unless the application is with the appeal notice; and

(b)the other party.

(3) The court must not decide such an application without giving the other party an opportunity to make representations, including representations about any condition or surety proposed by the applicant.

[Note. See section 19 of the Criminal Appeal Act 1968(733) and section 3(8) of the Bail Act 1976(734). An application about bail or about the conditions of bail may be made either by an appellant or respondent.

Under section 81(1) of the Senior Courts Act 1981(735), a Crown Court judge may grant bail pending appeal only (a) if that judge gives a certificate that the case is fit for appeal (see rule 68.4) and (b) not more than 28 days after the conviction or sentence against which the appellant wants to appeal.]

Conditions of bail pending appeal or retrial

68.9.-(1) This rule applies where the court grants a party bail pending appeal or retrial subject to any condition that must be met before that party is released.

(2) The court may direct how such a condition must be met.

(3) The Registrar must serve a certificate in the form set out in the Practice Direction recording any such condition and direction on-

(a)that party;

(b)that party's custodian; and

(c)any other person directly affected by any such direction.

(4) A person directly affected by any such direction need not comply with it until the Registrar serves that person with that certificate.

(5) Unless the court otherwise directs, if any such condition or direction requires someone to enter into a recognizance it must be-

(a)in the form set out in the Practice Direction and signed before-

(i)the Registrar,

(ii)the custodian, or

(iii)someone acting with the authority of the Registrar or custodian;

(b)copied immediately to the person who enters into it; and

(c)served immediately by the Registrar on the appellant's custodian or vice versa, as appropriate.

(6) Unless the court otherwise directs, if any such condition or direction requires someone to make a payment, surrender a document or take some other step-

(a)that payment, document or step must be made, surrendered or taken to or before-

(i)the Registrar,

(ii)the custodian, or

(iii)someone acting with the authority of the Registrar or custodian;

(b)the Registrar or the custodian, as appropriate, must serve immediately on the other a statement that the payment, document or step has been made, surrendered or taken, as appropriate.

(7) The custodian must release the appellant where it appears that any condition ordered by the court has been met.

(8) For the purposes of section 5 of the Bail Act 1976(736) (record of decision about bail), the Registrar must keep a copy of-

(a)any certificate served under paragraph (3);

(b)a notice of hearing given under rule 65.7(1); and

(c)a notice of the court's decision served under rule 65.7(2).

(9) Where the court grants bail pending retrial the Registrar must serve on the Crown Court officer copies of the documents kept under paragraph (8).

Forfeiture of a recognizance given as a condition of bail

68.10.-(1) This rule applies where-

(a)the court grants a party bail pending appeal or retrial; and

(b)the bail is subject to a condition that that party provides a surety to guarantee that he will surrender to custody as required; but

(c)that party does not surrender to custody as required.

(2) The Registrar must serve notice on-

(a)the surety; and

(b)the prosecutor,

of the hearing at which the court may order the forfeiture of the recognizance given by that surety.

(3) The court must not forfeit a surety's recognizance-

(a)less than 7 days after the Registrar serves notice under paragraph (2); and

(b)without giving the surety an opportunity to make representations at a hearing.

[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.]

Right to attend hearing

68.11. A party who is in custody has a right to attend a hearing in public unless-

(a)it is a hearing preliminary or incidental to an appeal, including the hearing of an application for permission to appeal; or

(b)that party is in custody in consequence of-

(i)a verdict of not guilty by reason of insanity, or

(ii)a finding of disability.

[Note. See rule 65.6 (hearings) and section 22 of the Criminal Appeal Act 1968(737). There are corresponding provisions in The Criminal Justice Act 2003 (Mandatory Life Sentences: Appeals in Transitional Cases) Order 2005(738) and in The Serious Organised Crime and Police Act 2005 (Appeals under section 74) Order 2006(739). Under section 22 of the 1968 Act, the court may direct that an appellant who is in custody is to attend a hearing by live link.]

Power to vary determination of appeal against sentence

68.12.-(1) This rule applies where the court decides an appeal affecting sentence in a party's absence.

(2) The court may vary such a decision if it did not take account of something relevant because that party was absent.

(3) A party who wants the court to vary such a decision must-

(a)apply in writing, with reasons;

(b)serve the application on the Registrar not more than 7 days after-

(i)the decision, if that party was represented at the appeal hearing, or

(ii)the Registrar serves the decision, if that party was not represented at that hearing.

[Note. Section 22(3) of the Criminal Appeal Act 1968 allows the court to sentence in an appellant's absence. There are corresponding provisions in The Criminal Justice Act 2003 (Mandatory Life Sentences: Appeals in Transitional Cases) Order 2005 and in The Serious Organised Crime and Police Act 2005 (Appeals under Section 74) Order 2006.]

Directions about re-admission to hospital on dismissal of appeal

68.13.-(1) This rule applies where-

(a)an appellant subject to-

(i)an order under section 37(1) of the Mental Health Act 1983(740) (detention in hospital on conviction), or

(ii)an order under section 5(2) of the Criminal Procedure (Insanity) Act 1964(741) (detention in hospital on finding of insanity or disability)

has been released on bail pending appeal; and

(b)the court-

(i)refuses permission to appeal,

(ii)dismisses the appeal, or

(iii)affirms the order under appeal.

(2) The court must give appropriate directions for the appellant's-

(a)re-admission to hospital; and

(b)if necessary, temporary detention pending re-admission.

Renewal or setting aside of order for retrial

68.14.-(1) This rule applies where-

(a)a prosecutor wants a defendant to be arraigned more than 2 months after the court ordered a retrial under section 7 of the Criminal Appeal Act 1968(742); or

(b)a defendant wants such an order set aside after 2 months have passed since it was made.

(2) That party must apply in writing, with reasons, and serve the application on-

(a)the Registrar;

(b)the other party.

[Note. Section 8(1) and (1A) of the Criminal Appeal Act 1968(743) set out the criteria for making an order on an application to which this rule applies.]

PART 69APPEAL TO THE COURT OF APPEAL REGARDING REPORTING OR PUBLIC ACCESS RESTRICTION

When this Part applies

69.1.-(1) This Part applies where a person directly affected by an order to which section 159(1) of the Criminal Justice Act 1988(744) applies wants to appeal against that order.

(2) A reference to an -�appellant' in this Part is a reference to such a party.

[Note. Section 159(1) of the Criminal Justice Act 1988 gives a -�person aggrieved' (in this Part described as a person directly affected) a right of appeal to the Court of Appeal against a Crown Court judge's order-

(a)under section 4 or 11 of the Contempt of Court Act 1981(745);

(b)under section 58(7) of the Criminal Procedure and Investigations Act 1996(746);

(c)restricting public access to any part of a trial for reasons of national security or for the protection of a witness or other person; or

(d)restricting the reporting of any part of a trial.

See Rule 16.10 for the procedure on an application to restrict public access to a trial.

The rules in Part 65 also apply where this Part applies.]

Service of appeal notice

69.2.-(1) An appellant must serve an appeal notice on-

(a)the Crown Court officer;

(b)the Registrar;

(c)the parties; and

(d)any other person directly affected by the order against which the appellant wants to appeal.

(2) The appellant must serve the appeal notice not later than-

(a)the next business day after an order restricting public access to the trial;

(b)10 business days after an order restricting reporting of the trial.

Form of appeal notice

69.3.-(1) An appeal notice must be in the form set out in the Practice Direction.

(2) The appeal notice must-

(a)specify the order against which the appellant wants to appeal;

(b)identify each ground of appeal on which the appellant relies, numbering them consecutively (if there is more than one) and concisely outlining each argument in support;

(c)summarise the relevant facts;

(d)identify any relevant authorities;

(e)include or attach, with reasons-

(i)an application for permission to appeal,

(ii)any application for an extension of time within which to serve the appeal notice,

(iii)any application for a direction to attend in person a hearing that the appellant could attend by live link, if the appellant is in custody,

(iv)any application for permission to introduce evidence, and

(v)a list of those on whom the appellant has served the appeal notice; and

(f)attach any document or thing that the appellant thinks the court will need to decide the appeal.

[Note. An appellant needs the court's permission to appeal in every case to which this Part applies.

A Court of Appeal judge may give permission to appeal under section 31(2B) of the Criminal Appeal Act 1968(747).]

Advance notice of appeal against order restricting public access

69.4.-(1) This rule applies where the appellant wants to appeal against an order restricting public access to a trial.

(2) The appellant may serve advance written notice of intention to appeal against any such order that may be made.

(3) The appellant must serve any such advance notice-

(a)on-

(i)the Crown Court officer,

(ii)the Registrar,

(iii)the parties, and

(iv)any other person who will be directly affected by the order against which the appellant intends to appeal, if it is made; and

(b)not more than 5 business days after the Crown Court officer displays notice of the application for the order.

(4) The advance notice must include the same information (with the necessary adaptations) as an appeal notice.

(5) The court must treat that advance notice as the appeal notice if the order is made.

Duty of applicant for order restricting public access

69.5.-(1) This rule applies where the appellant wants to appeal against an order restricting public access to a trial.

(2) The party who applied for the order must serve on the Registrar-

(a)a transcript or note of the application for the order; and

(b)any other document or thing that that party thinks the court will need to decide the appeal.

(3) That party must serve that transcript or note and any such other document or thing as soon as practicable after-

(a)the appellant serves the appeal notice; or

(b)the order, where the appellant served advance notice of intention to appeal.

Respondent's notice on appeal against reporting restriction

69.6.-(1) This rule applies where the appellant wants to appeal against an order restricting the reporting of a trial.

(2) A person on whom an appellant serves an appeal notice may serve a respondent's notice, and must do so if-

(a)that person wants to make representations to the court; or

(b)the court so directs.

(3) Such a person must serve the respondent's notice on-

(a)the appellant;

(b)the Crown Court officer;

(c)the Registrar;

(d)the parties; and

(e)any other person on whom the appellant served the appeal notice.

(4) Such a person must serve the respondent's notice not more than 3 business days after-

(a)the appellant serves the appeal notice; or

(b)a direction to do so.

(5) The respondent's notice must be in the form set out in the Practice Direction.

(6) The respondent's notice must-

(a)give the date on which the respondent was served with the appeal notice;

(b)identify each ground of opposition on which the respondent relies, numbering them consecutively (if there is more than one), concisely outlining each argument in support and identifying the ground of appeal to which each relates;

(c)summarise any relevant facts not already summarised in the appeal notice;

(d)identify any relevant authorities;

(e)include or attach any application for the following, with reasons-

(i)an extension of time within which to serve the respondent's notice,

(ii)a direction to attend in person any hearing that the respondent could attend by live link, if the respondent is in custody,

(iii)permission to introduce evidence; and

(f)identify any other document or thing that the respondent thinks the court will need to decide the appeal.

Renewing applications

69.7. Rule 65.5 (renewing an application refused by a judge or the Registrar) applies with a time limit of 5 business days.

Right to introduce evidence

69.8. No person may introduce evidence without the court's permission.

[Note. Section 159(4) of the Criminal Justice Act 1988 entitles the parties to give evidence, subject to procedure rules.]

Right to attend hearing

69.9.-(1) A party who is in custody has a right to attend a hearing in public of an appeal against an order restricting the reporting of a trial.

(2) The court or the Registrar may direct that such a party is to attend a hearing by live link.

[Note. See rule 65.6 (hearings). The court must decide an application and an appeal without a hearing where the appellant wants to appeal against an order restricting public access to a trial: rule 65.6(3).]

PART 70REFERENCE TO THE COURT OF APPEAL OF POINT OF LAW OR UNDULY LENIENT SENTENCING

When this Part applies

70.1. This Part applies where the Attorney General wants to-

(a)refer a point of law to the Court of Appeal under section 36 of the Criminal Justice Act 1972(748); or

(b)refer a sentencing case to the Court of Appeal under section 36 of the Criminal Justice Act 1988(749).

[Note. Under section 36 of the Criminal Justice Act 1972, where a defendant is acquitted in the Crown Court the Attorney General may refer to the Court of Appeal a point of law in the case.

Under section 36 of the Criminal Justice Act 1988, if the Attorney General thinks the sentencing of a defendant in the Crown Court is unduly lenient he may refer the case to the Court of Appeal: but only if the sentence is one to which Part IV of the 1988 Act applies, and only if the Court of Appeal gives permission. See also section 35 of the 1988 Act(750) and the Criminal Justice Act 1988 (Reviews of Sentencing) Order 2006(751).

The rules in Part 65 also apply where this Part applies.]

Service of notice of reference and application for permission

70.2.-(1) The Attorney General must-

(a)serve on the Registrar-

(i)any notice of reference, and

(ii)any application for permission to refer a sentencing case; and

(b)with a notice of reference of a point of law, give the Registrar details of-

(i)the defendant affected,

(ii)the date and place of the relevant Crown Court decision, and

(iii)the relevant verdict and sentencing.

(2) The Attorney General must serve an application for permission to refer a sentencing case not more than 28 days after the last of the sentences in that case.

[Note. The time limit for serving an application for permission to refer a sentencing case is prescribed by paragraph 1 of Schedule 3 to the Criminal Justice Act 1988. It may be neither extended nor shortened.]

Form of notice of reference and application for permission

70.3.-(1) A notice of reference and an application for permission to refer a sentencing case must be in the appropriate form set out in the Practice Direction, giving the year and number.

(2) A notice of reference of a point of law must-

(a)specify the point of law in issue and indicate the opinion that the Attorney General invites the court to give;

(b)identify each ground for that invitation, numbering them consecutively (if there is more than one) and concisely outlining each argument in support;

(c)exclude any reference to the defendant's name and any other reference that may identify the defendant;

(d)summarise the relevant facts; and

(e)identify any relevant authorities.

(3) An application for permission to refer a sentencing case must-

(a)give details of-

(i)the defendant affected,

(ii)the date and place of the relevant Crown Court decision, and

(iii)the relevant verdict and sentencing;

(b)explain why that sentencing appears to the Attorney General unduly lenient, concisely outlining each argument in support; and

(c)include the application for permission to refer the case to the court.

(4) A notice of reference of a sentencing case must-

(a)include the same details and explanation as the application for permission to refer the case;

(b)summarise the relevant facts; and

(c)identify any relevant authorities.

(5) Where the court gives the Attorney General permission to refer a sentencing case, it may treat the application for permission as the notice of reference.

Registrar's notice to defendant

70.4.-(1) The Registrar must serve on the defendant-

(a)a notice of reference;

(b)an application for permission to refer a sentencing case.

(2) Where the Attorney General refers a point of law, the Registrar must give the defendant notice that-

(a)the outcome of the reference will not make any difference to the outcome of the trial; and

(b)the defendant may serve a respondent's notice.

(3) Where the Attorney General applies for permission to refer a sentencing case, the Registrar must give the defendant notice that-

(a)the outcome of the reference may make a difference to that sentencing, and in particular may result in a more severe sentence; and

(b)the defendant may serve a respondent's notice.

Respondent's notice

70.5.-(1) A defendant on whom the Registrar serves a reference or an application for permission to refer a sentencing case may serve a respondent's notice, and must do so if-

(a)the defendant wants to make representations to the court; or

(b)the court so directs.

(2) Such a defendant must serve the respondent's notice on-

(a)the Attorney General; and

(b)the Registrar.

(3) Such a defendant must serve the respondent's notice-

(a)where the Attorney General refers a point of law, not more than 28 days after-

(i)the Registrar serves the reference, or

(ii)a direction to do so;

(b)where the Attorney General applies for permission to refer a sentencing case, not more than 14 days after-

(i)the Registrar serves the application, or

(ii)a direction to do so.

(4) Where the Attorney General refers a point of law, the respondent's notice must-

(a)identify each ground of opposition on which the respondent relies, numbering them consecutively (if there is more than one), concisely outlining each argument in support and identifying the Attorney General's ground or reason to which each relates;

(b)summarise any relevant facts not already summarised in the reference;

(c)identify any relevant authorities; and

(d)include or attach any application for the following, with reasons-

(i)an extension of time within which to serve the respondent's notice,

(ii)permission to attend a hearing that the respondent does not have a right to attend,

(iii)a direction to attend in person a hearing that the respondent could attend by live link, if the respondent is in custody.

(5) Where the Attorney General applies for permission to refer a sentencing case, the respondent's notice must-

(a)say if the respondent wants to make representations at the hearing of the application or reference; and

(b)include or attach any application for the following, with reasons-

(i)an extension of time within which to serve the respondent's notice,

(ii)permission to attend a hearing that the respondent does not have a right to attend,

(iii)a direction to attend in person a hearing that the respondent could attend by live link, if the respondent is in custody.

Variation or withdrawal of notice of reference or application for permission

70.6.-(1) This rule applies where the Attorney General wants to vary or withdraw-

(a)a notice of reference; or

(b)an application for permission to refer a sentencing case.

(2) The Attorney General-

(a)may vary or withdraw the notice or application without the court's permission by serving notice on-

(i)the Registrar, and

(ii)the defendant

before any hearing of the reference or application; but

(b)at any such hearing, may only vary or withdraw that notice or application with the court's permission.

Right to attend hearing

70.7.-(1) A respondent who is in custody has a right to attend a hearing in public unless it is a hearing preliminary or incidental to a reference, including the hearing of an application for permission to refer a sentencing case.

(2) The court or the Registrar may direct that such a respondent is to attend a hearing by live link.

[Note. See rule 65.6 (hearings) and paragraphs 6 and 7 of Schedule 3 to the Criminal Justice Act 1988. Under paragraph 8 of that Schedule, the Court of Appeal may sentence in the absence of a defendant whose sentencing is referred.]

Anonymity of defendant on reference of point of law

70.8. Where the Attorney General refers a point of law, the court must not allow anyone to identify the defendant during the proceedings unless the defendant gives permission.

PART 71APPEAL TO THE COURT OF APPEAL UNDER THE PROCEEDS OF CRIME ACT 2002: GENERAL RULES

Extension of time

71.1.-(1) An application to extend the time limit for giving notice of application for leave to appeal under Part 2 of the Proceeds of Crime Act 2002(752) must-

(a)be included in the notice of appeal; and

(b)state the grounds for the application.

(2) The parties may not agree to extend any date or time limit set by this Part, Part 72 or Part 73, or by The Proceeds of Crime Act 2002 (Appeals under Part 2) Order 2003(753).

Other applications

71.2. Rule 68.3(2)(h) (form of appeal notice) applies in relation to an application-

(a)by a party to an appeal under Part 2 of the Proceeds of Crime Act 2002 that, under article 7 of The Proceeds of Crime Act 2002 (Appeals under Part 2) Order 2003, a witness be ordered to attend or that the evidence of a witness be received by the Court of Appeal; or

(b)by the defendant to be given leave by the court to be present at proceedings for which leave is required under article 6 of the 2003 Order,

as it applies in relation to applications under Part I of the Criminal Appeal Act 1968(754) and the form in which rule 68.3 requires notice to be given may be modified as necessary.

Examination of witness by court

71.3. Rule 65.7 (notice of hearings and decisions) applies in relation to an order of the court under article 7 of the Proceeds of Crime Act 2002 (Appeals under Part 2) Order 2003 to require a person to attend for examination as it applies in relation to such an order of the court under Part I of the Criminal Appeal Act 1968.

Supply of documentary and other exhibits

71.4. Rule 65.11 (Registrar's duty to provide copy documents for appeal or reference) applies in relation to an appellant or respondent under Part 2 of the Proceeds of Crime Act 2002 as it applies in relation to an appellant and respondent under Part I of the Criminal Appeal Act 1968.

Registrar's power to require information from court of trial

71.5. The Registrar may require the Crown Court to provide the Court of Appeal with any assistance or information which they may require for the purposes of exercising their jurisdiction under Part 2 of the Proceeds of Crime Act 2002, The Proceeds of Crime Act 2002 (Appeals under Part 2) Order 2003, this Part or Parts 72 and 73.

Hearing by single judge

71.6. Rule 65.6(5) (hearings) applies in relation to a judge exercising any of the powers referred to in article 8 of The Proceeds of Crime Act 2002 (Appeals under Part 2) Order 2003(755) or the powers in rules 72.2(3) and (4) (respondent's notice), 73.2(2) (notice of appeal) and 73.3(6) (respondent's notice), as it applies in relation to a judge exercising the powers referred to in section 31(2) of the Criminal Appeal Act 1968(756).

Determination by full court

71.7. Rule 65.5 (renewing an application refused by a judge or the registrar) shall apply where a single judge has refused an application by a party to exercise in his favour any of the powers listed in article 8 of The Proceeds of Crime Act 2002 (Appeals under Part 2) Order 2003, or the power in rule 72.2(3) or (4) as it applies where the judge has refused to exercise the powers referred to in section 31(2) of the Criminal Appeal Act 1968.

Notice of determination

71.8.-(1) This rule applies where a single judge or the Court of Appeal has determined an application or appeal under The Proceeds of Crime Act 2002 (Appeals under Part 2) Order 2003 or under Part 2 of the Proceeds of Crime Act 2002.

(2) The Registrar must, as soon as practicable, serve notice of the determination on all of the parties to the proceedings.

(3) Where a single judge or the Court of Appeal has disposed of an application for leave to appeal or an appeal under section 31 of the 2002 Act(757), the registrar must also, as soon as practicable, serve the order on a court officer of the court of trial and any magistrates' court responsible for enforcing any confiscation order which the Crown Court has made.

Record of proceedings and transcripts

71.9. Rule 65.8(2)(a) and (b) (duty of Crown Court officer -� arranging recording of proceedings in Crown Court and arranging transcription) and rule 65.9 (duty of person transcribing proceedings in the Crown Court) apply in relation to proceedings in respect of which an appeal lies to the Court of Appeal under Part 2 of the Proceeds of Crime Act 2002 as they apply in relation to proceedings in respect of which an appeal lies to the Court of Appeal under Part I of the Criminal Appeal Act 1968.

Appeal to the Supreme Court

71.10.-(1) An application to the Court of Appeal for leave to appeal to the Supreme Court under Part 2 of the Proceeds of Crime Act 2002 must be made-

(a)orally after the decision of the Court of Appeal from which an appeal lies to the Supreme Court; or

(b)in the form set out in the Practice Direction, in accordance with article 12 of The Proceeds of Crime Act 2002 (Appeals under Part 2) Order 2003 and served on the Registrar.

(2) The application may be abandoned at any time before it is heard by the Court of Appeal by serving notice in writing on the Registrar.

(3) Rule 65.6(5) (hearings) applies in relation to a single judge exercising any of the powers referred to in article 15 of the 2003 Order, as it applies in relation to a single judge exercising the powers referred to in section 31(2) of the Criminal Appeal Act 1968.

(4) Rule 65.5 (renewing an application refused by a judge or the Registrar) applies where a single judge has refused an application by a party to exercise in his favour any of the powers listed in article 15 of the 2003 Order as they apply where the judge has refused to exercise the powers referred to in section 31(2) of the 1968 Act.

(5) The form in which rule 65.5(2) requires an application to be made may be modified as necessary.

PART 72APPEAL TO THE COURT OF APPEAL UNDER THE PROCEEDS OF CRIME ACT 2002: PROSECUTOR'S APPEAL REGARDING CONFISCATION

Notice of appeal

72.1.-(1) Where an appellant wishes to apply to the Court of Appeal for leave to appeal under section 31 of the Proceeds of Crime Act 2002(758), he must serve a notice of appeal in the form set out in the Practice Direction on-

(a)the Crown Court officer; and

(b)the defendant.

(2) When the notice of the appeal is served on the defendant, it must be accompanied by a respondent's notice in the form set out in the Practice Direction for the defendant to complete and a notice which-

(a)informs the defendant that the result of an appeal could be that the Court of Appeal would increase a confiscation order already imposed on him, make a confiscation order itself or direct the Crown Court to hold another confiscation hearing;

(b)informs the defendant of any right he has under article 6 of the Proceeds of Crime Act 2002 (Appeals under Part 2) Order 2003(759) to be present at the hearing of the appeal, although he may be in custody;

(c)invites the defendant to serve notice on the registrar if he wishes-

(i)to apply to the Court of Appeal for leave to be present at proceedings for which leave is required under article 6 of the 2003 Order, or

(ii)to present any argument to the Court of Appeal on the hearing of the application or, if leave is given, the appeal, and whether he wishes to present it in person or by means of a legal representative;

(d)draws to the defendant's attention the effect of rule 71.4 (supply of documentary and other exhibits); and

(e)advises the defendant to consult a solicitor as soon as possible.

(3) The appellant must provide a Crown Court officer with a certificate of service stating that he has served the notice of appeal on the defendant in accordance with paragraph (1) or explaining why he has been unable to effect service.

Respondent's notice

72.2.-(1) This rule applies where a defendant is served with a notice of appeal under rule 72.1.

(2) If the defendant wishes to oppose the application for leave to appeal, he must, not later than 14 days after the date on which he received the notice of appeal, serve on the Registrar and on the appellant a notice in the form set out in the Practice Direction-

(a)stating the date on which he received the notice of appeal;

(b)summarising his response to the arguments of the appellant; and

(c)specifying the authorities which he intends to cite.

(3) The time for giving notice under this rule may be extended by the Registrar, a single judge or by the Court of Appeal.

(4) Where the Registrar refuses an application under paragraph (3) for the extension of time, the defendant shall be entitled to have his application determined by a single judge.

(5) Where a single judge refuses an application under paragraph (3) or (4) for the extension of time, the defendant shall be entitled to have his application determined by the Court of Appeal.

Amendment and abandonment of appeal

72.3.-(1) The appellant may amend a notice of appeal served under rule 72.1 or abandon an appeal under section 31 of the Proceeds of Crime Act 2002-

(a)without the permission of the Court at any time before the Court of Appeal have begun hearing the appeal; and

(b)with the permission of the Court after the Court of Appeal have begun hearing the appeal,

by serving notice in writing on the Registrar.

(2) Where the appellant serves a notice abandoning an appeal under paragraph (1), he must send a copy of it to-

(a)the defendant;

(b)a court officer of the court of trial; and

(c)the magistrates' court responsible for enforcing any confiscation order which the Crown Court has made.

(3) Where the appellant serves a notice amending a notice of appeal under paragraph (1), he must send a copy of it to the defendant.

(4) Where an appeal is abandoned under paragraph (1), the application for leave to appeal or appeal shall be treated, for the purposes of section 85 of the 2002 Act (conclusion of proceedings), as having been refused or dismissed by the Court of Appeal.

PART 73APPEAL TO THE COURT OF APPEAL UNDER POCA 2002: RESTRAINT OR RECEIVERSHIP ORDERS

Leave to appeal

73.1.-(1) Leave to appeal to the Court of Appeal under section 43 or section 65 of the Proceeds of Crime Act 2002(760) will only be given where-

(a)the Court of Appeal considers that the appeal would have a real prospect of success; or

(b)there is some other compelling reason why the appeal should be heard.

(2) An order giving leave may limit the issues to be heard and be made subject to conditions.

Notice of appeal

73.2.-(1) Where an appellant wishes to apply to the Court of Appeal for leave to appeal under section 43 or 65 of the Proceeds of Crime Act 2002 Act, he must serve a notice of appeal in the form set out in the Practice Direction on the Crown Court officer.

(2) Unless the Registrar, a single judge or the Court of Appeal directs otherwise, the appellant must serve the notice of appeal, accompanied by a respondent's notice in the form set out in the Practice Direction for the respondent to complete, on-

(a)each respondent;

(b)any person who holds realisable property to which the appeal relates; and

(c)any other person affected by the appeal,

as soon as practicable and in any event not later than 7 days after the notice of appeal is served on a Crown Court officer.

(3) The appellant must serve the following documents with his notice of appeal-

(a)four additional copies of the notice of appeal for the Court of Appeal;

(b)four copies of any skeleton argument;

(c)one sealed copy and four unsealed copies of any order being appealed;

(d)four copies of any witness statement or affidavit in support of the application for leave to appeal;

(e)four copies of a suitable record of the reasons for judgment of the Crown Court; and

(f)four copies of the bundle of documents used in the Crown Court proceedings from which the appeal lies.

(4) Where it is not possible to serve all of the documents referred to in paragraph (3), the appellant must indicate which documents have not yet been served and the reasons why they are not currently available.

(5) The appellant must provide a Crown Court officer with a certificate of service stating that he has served the notice of appeal on each respondent in accordance with paragraph (2) and including full details of each respondent or explaining why he has been unable to effect service.

Respondent's notice

73.3.-(1) This rule applies to an appeal under section 43 or 65 of the Proceeds of Crime Act 2002.

(2) A respondent may serve a respondent's notice on the Registrar.

(3) A respondent who-

(a)is seeking leave to appeal from the Court of Appeal; or

(b)wishes to ask the Court of Appeal to uphold the decision of the Crown Court for reasons different from or additional to those given by the Crown Court,

must serve a respondent's notice on the Registrar.

(4) A respondent's notice must be in the form set out in the Practice Direction and where the respondent seeks leave to appeal to the Court of Appeal it must be requested in the respondent's notice.

(5) A respondent's notice must be served on the Registrar not later than 14 days after-

(a)the date the respondent is served with notification that the Court of Appeal has given the appellant leave to appeal; or

(b)the date the respondent is served with notification that the application for leave to appeal and the appeal itself are to be heard together.

(6) Unless the Registrar, a single judge or the Court of Appeal directs otherwise, the respondent serving a respondent's notice must serve the notice on the appellant and any other respondent-

(a)as soon as practicable; and

(b)in any event not later than seven days,

after it is served on the Registrar.

Amendment and abandonment of appeal

73.4.-(1) The appellant may amend a notice of appeal served under rule 73.2 or abandon an appeal under section 43 or 65 of the Proceeds of Crime Act 2002-

(a)without the permission of the Court at any time before the Court of Appeal have begun hearing the appeal; and

(b)with the permission of the Court after the Court of Appeal have begun hearing the appeal,

by serving notice in writing on the Registrar.

(2) Where the appellant serves a notice under paragraph (1), he must send a copy of it to each respondent.

Stay

73.5. Unless the Court of Appeal or the Crown Court orders otherwise, an appeal under section 43 or 65 of the Proceeds of Crime Act 2002 shall not operate as a stay of any order or decision of the Crown Court.

Striking out appeal notices and setting aside or imposing conditions on leave to appeal

73.6.-(1) The Court of Appeal may-

(a)strike out the whole or part of a notice of appeal served under rule 73.2; or

(b)impose or vary conditions upon which an appeal under section 43 or 65 of the Proceeds of Crime Act 2002 may be brought.

(2) The Court of Appeal will only exercise its powers under paragraph (1) where there is a compelling reason for doing so.

(3) Where a party is present at the hearing at which leave to appeal was given, he may not subsequently apply for an order that the Court of Appeal exercise its powers under paragraph (1)(b).

Hearing of appeals

73.7.-(1) This rule applies to appeals under section 43 or 65 of the Proceeds of Crime Act 2002.

(2) Every appeal will be limited to a review of the decision of the Crown Court unless the Court of Appeal considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing.

(3) The Court of Appeal will allow an appeal where the decision of the Crown Court was-

(a)wrong; or

(b)unjust because of a serious procedural or other irregularity in the proceedings in the Crown Court.

(4) The Court of Appeal may draw any inference of fact which it considers justified on the evidence.

(5) At the hearing of the appeal a party may not rely on a matter not contained in his notice of appeal unless the Court of Appeal gives permission.

PART 74APPEAL OR REFERENCE TO THE SUPREME COURT

When this Part applies

74.1.-(1) This Part applies where-

(a)a party wants to appeal to the Supreme Court after-

(i)an application to the Court of Appeal to which Part 41 applies (retrial following acquittal for serious offence), or

(ii)an appeal to the Court of Appeal to which applies Part 66 (appeal to the Court of Appeal against ruling at preparatory hearing), Part 67 (appeal to the Court of Appeal against ruling adverse to prosecution), or Part 68 (appeal to the Court of Appeal about conviction or sentence); or

(b)a party wants to refer a case to the Supreme Court after a reference to the Court of Appeal to which Part 70 applies (reference to the Court of Appeal of point of law or unduly lenient sentencing).

(2) A reference to an -�appellant' in this Part is a reference to such a party.

[Note. Under section 33 of the Criminal Appeal Act 1968(761), a party may appeal to the Supreme Court from a decision of the Court of Appeal on-

(a)an application to the court under section 76 of the Criminal Justice Act 2003(762) (prosecutor's application for retrial after acquittal for serious offence). See also Part 41.

(b)an appeal to the court under-

(i)section 9 of the Criminal Justice Act 1987(763) or section 35 of the Criminal Procedure and Investigations Act 1996(764) (appeal against order at preparatory hearing). See also Part 66.

(ii)section 47 of the Criminal Justice Act 2003(765) (appeal against order for non-jury trial after jury tampering.) See also Part 66.

(iii)Part 9 of the Criminal Justice Act 2003(766) (prosecutor's appeal against adverse ruling). See also Part 67.

(iv)Part 1 of the Criminal Appeal Act 1968(767) (defendant's appeal against conviction, sentence, etc.). See also Part 68.

Under section 13 of the Administration of Justice Act 1960(768), a person found to be in contempt of court may appeal to the Supreme Court from a decision of the Court of Appeal on an appeal to the court under that section. See also Part 68.

Under article 12 of The Criminal Justice Act 2003 (Mandatory Life Sentence: Appeals in Transitional Cases) Order 2005(769), a party may appeal to the Supreme Court from a decision of the Court of Appeal on an appeal to the court under paragraph 14 of Schedule 22 to the Criminal Justice Act 2003(770) (appeal against minimum term review decision). See also Part 68.

Under article 15 of The Serious Organised Crime and Police Act 2005 (Appeals under Section 74) Order 2006(771), a party may appeal to the Supreme Court from a decision of the Court of Appeal on an appeal to the court under section 74 of the Serious Organised Crime and Police Act 2005(772) (appeal against sentence review decision). See also Part 68.

Under section 24 of the Serious Crime Act 2007(773), a party may appeal to the Supreme Court from a decision of the Court of Appeal on an appeal to that court under that section (appeal about a serious crime prevention order). See also Part 68.

Under section 36(3) of the Criminal Justice Act 1972(774), the Court of Appeal may refer to the Supreme Court a point of law referred by the Attorney General to the court. See also Part 70.

Under section 36(5) of the Criminal Justice Act 1988(775), a party may refer to the Supreme Court a sentencing decision referred by the Attorney General to the court. See also Part 70.

Under section 33(3) of the Criminal Appeal Act 1968, there is no appeal to the Supreme Court-

(a)from a decision of the Court of Appeal on an appeal under section 14A(5A) of the Football Spectators Act 1989(776) (prosecutor's appeal against failure to make football banning order). See Part 68.

(b)from a decision of the Court of Appeal on an appeal under section 159(1) of the Criminal Justice Act 1988(777) (appeal about reporting or public access restriction). See Part 69.

The rules in Part 65 also apply where this Part applies.]

Application for permission or reference

74.2.-(1) An appellant must-

(a)apply orally to the Court of Appeal-

(i)for permission to appeal or to refer a sentencing case, or

(ii)to refer a point of law

immediately after the court gives the reasons for its decision; or

(b)apply in writing and serve the application on the Registrar and every other party not more than-

(i)14 days after the court gives the reasons for its decision if that decision was on a sentencing reference to which Part 70 applies (Attorney General's reference of sentencing case), or

(ii)28 days after the court gives those reasons in any other case.

(2) An application for permission to appeal or to refer a sentencing case must-

(a)identify the point of law of general public importance that the appellant wants the court to certify is involved in the decision; and

(b)give reasons why-

(i)that point of law ought to be considered by the Supreme Court, and

(ii)the court ought to give permission to appeal.

(3) An application to refer a point of law must give reasons why that point ought to be considered by the Supreme Court.

(4) An application must include or attach any application for the following, with reasons-

(a)an extension of time within which to make the application for permission or for a reference;

(b)bail pending appeal;

(c)permission to attend any hearing in the Supreme Court, if the appellant is in custody.

(5) A written application must be in the form set out in the Practice Direction.

[Note. In some legislation, including the Criminal Appeal Act 1968, permission to appeal is described as -�leave to appeal'.

Under the provisions listed in the note to rule 74.1, except section 36(3) of the Criminal Justice Act 1972 (Attorney General's reference of point of law), an appellant needs permission to appeal or to refer a sentencing case. Under those provisions, the Court of Appeal must not give permission unless it first certifies that-

(a)a point of law of general public importance is involved in the decision, and

(b)it appears to the court that the point is one which the Supreme Court ought to consider.

If the Court of Appeal gives such a certificate but refuses permission, an appellant may apply for such permission to the Supreme Court.

Under section 36(3) of the Criminal Justice Act 1972 an appellant needs no such permission. The Court of Appeal may refer the point of law to the Supreme Court, or may refuse to do so.

For the power of the court or the Registrar to shorten or extend a time limit, see rule 65.3. The time limit in this rule-

(a)for applying for permission to appeal under section 33 of the Criminal Appeal Act 1968 (28 days) is prescribed by section 34 of that Act(778). That time limit may be extended but not shortened by the court. But it may be extended on an application by a prosecutor only after an application to which Part 41 applies (retrial after acquittal for serious offence).

(b)for applying for permission to refer a case under section 36(5) of the Criminal Justice Act 1988 (Attorney General's reference of sentencing decision: 14 days) is prescribed by paragraph 4 of Schedule 3 to that Act. That time limit may be neither extended nor shortened.

(c)for applying for permission to appeal under article 12 of The Criminal Justice Act 2003 (Mandatory Life Sentence: Appeals in Transitional Cases) Order 2005 (28 days) is prescribed by article 13 of that Order. That time limit may be extended but not shortened.

(d)for applying for permission to appeal under article 15 of The Serious Organised Crime and Police Act 2005 (Appeals under Section 74) Order 2006 (28 days) is prescribed by article 16 of that Order. That time limit may be extended but not shortened.

For the power of the Court of Appeal to grant bail pending appeal to the Supreme Court , see-

(a)section 36 of the Criminal Appeal Act 1968(779).

(b)article 18 of The Serious Organised Crime and Police Act 2005 (Appeals under Section 74) Order 2006(780).

For the right of an appellant in custody to attend a hearing in the Supreme Court, see-

(a)section 38 of the Criminal Appeal Act 1968(781).

(b)paragraph 9 of Schedule 3 to the Criminal Justice Act 1988(782).

(c)article 15 of The Criminal Justice Act 2003 (Mandatory Life Sentences: Appeals in Transitional Cases) Order 2005(783).

(d)article 20 of The Serious Organised Crime and Police Act 2005 (Appeals under Section 74) Order 2006(784).]

Determination of detention pending appeal, etc.

74.3. On an application for permission to appeal, the Court of Appeal must-

(a)decide whether to order the detention of a defendant who would have been liable to be detained but for the decision of the court; and

(b)determine any application for-

(i)bail pending appeal,

(ii)permission to attend any hearing in the Supreme Court, or

(iii)a representation order.

[Note. For the liability of a defendant to be detained pending a prosecutor's appeal to the Supreme Court and afterwards, see-

(a)section 37 of the Criminal Appeal Act 1968(785).

(b)article 19 of The Serious Organised Crime and Police Act 2005 (Appeals under Section 74) Order 2006(786).

For the grant of a representation order for proceedings in the Supreme Court, see-

(a)Access to Justice Act 1999, sections 12 and 14 and Schedule 3(787), and

(b)The Criminal Defence Service (General) (No. 2) Regulations 2001(788).]

Bail pending appeal

74.4. Rules 68.8 (Application for bail pending appeal or retrial), 68.9 (Conditions of bail pending appeal or re-trial) and 68.10 (Forfeiture of a recognizance given as a condition of bail) apply.

PART 75REQUEST TO THE EUROPEAN COURT FOR A PRELIMINARY RULING

When this Part applies

75.1. This Part applies where the court can request the Court of Justice of the European Union (-�the European Court') to give a preliminary ruling, under Article 267 of the Treaty on the Functioning of the European Union.

[Note. Under Article 267, if a court of a Member State considers that a decision on the question is necessary to enable it to give judgment, it may request the European Court to give a preliminary ruling concerning-

(a)the interpretation of the Treaty on European Union, or of the Treaty on the Functioning of the European Union;

(b)the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union.]

Preparation of request

75.2.-(1) The court may-

(a)make an order for the submission of a request-

(i)on application by a party, or

(ii)on its own initiative;

(b)give directions for the preparation of the terms of such a request.

(2) The court must-

(a)include in such a request-

(i)the identity of the court making the request,

(ii)the parties' identities,

(iii)a statement of whether a party is in custody,

(iv)a succinct statement of the question on which the court seeks the ruling of the European Court,

(v)a succinct statement of any opinion on the answer that the court may have expressed in any judgment that it has delivered,

(vi)a summary of the nature and history of the proceedings, including the salient facts and an indication of whether those facts are proved, admitted or assumed,

(vii)the relevant rules of national law,

(viii)a summary of the relevant contentions of the parties,

(ix)an indication of the provisions of European Union law that the European Court is asked to interpret, and

(x)an explanation of why a ruling of the European Court is requested;

(b)express the request in terms that can be translated readily into other languages; and

(c)set out the request in a schedule to the order.

Submission of request

75.3.-(1) The court officer must serve the order for the submission of the request on the Senior Master of the Queen's Bench Division of the High Court.

(2) The Senior Master will-

(a)submit the request to the European Court; but

(b)unless the court otherwise directs, postpone the submission of the request until-

(i)the time for any appeal against the order has expired, and

(ii)any appeal against the order has been determined.

Postponement of case pending request

75.4. Where the court orders the submission of a request-

(a)the general rule is that it will adjourn or postpone any further hearing; but

(b)it may otherwise direct.

PART 76COSTS

SECTION 1: GENERAL

When this Part applies

76.1.-(1) This Part applies where the court can make an order about costs under-

(a)Part II of the Prosecution of Offences Act 1985(789) and Part II, IIA or IIB of The Costs in Criminal Cases (General) Regulations 1986(790);

(b)section 109 of the Magistrates' Courts Act 1980(791);

(c)section 52 of the Senior Courts Act 1981(792) and rule 76.6;

(d)section 8 of the Bankers Books Evidence Act 1879(793);

(e)section 2C(8) of the Criminal Procedure (Attendance of Witnesses) Act 1965(794);

(f)section 36(5) of the Criminal Justice Act 1972(795);

(g)section 159(5) and Schedule 3, paragraph 11, of the Criminal Justice Act 1988(796);

(h)section 14H(5) of the Football Spectators Act 1989(797);

(i)section 4(7) of the Dangerous Dogs Act 1991(798); or

(j)Part 3 of The Serious Crime Act 2007 (Appeals under Section 24) Order 2008(799).

(2) In this Part, -�costs' means-

(a)the fees payable to a legal representative;

(b)the disbursements paid by a legal representative; and

(c)any other expenses incurred in connection with the case.

[Note. A costs order can be made under-

(a)section 16 of the Prosecution of Offences Act 1985(800) (defence costs), for the payment out of central funds of a defendant's costs (see rule 76.4);

(b)section 17 of the Prosecution of Offences Act 1985(801) (prosecution costs), for the payment out of central funds of a private prosecutor's costs (see rule 76.4);

(c)section 18 of the Prosecution of Offences Act 1985(802) (award of costs against accused), for the payment by a defendant of another person's costs (see rules 76.5 and 76.6);

(d)section 19(1) of the Prosecution of Offences Act 1985(803) and regulation 3 of The Costs in Criminal Cases (General) Regulations 1986, for the payment by a party of another party's costs incurred as a result of an unnecessary or improper act or omission by or on behalf of the first party (see rule 76.8);

(e)section 19A of the Prosecution of Offences Act 1985(804) (costs against legal representatives, etc.)-

(i)for the payment by a legal representative of a party's costs incurred as a result of an improper, unreasonable or negligent act or omission by or on behalf of the representative, or

(ii)disallowing the payment to that representative of such costs

(see rule 76.9);

(f)section 19B of the Prosecution of Offences Act 1985(805) (provision for award of costs against third parties) and regulation 3F of The Costs in Criminal Cases (General) Regulations 1986(806), for the payment by a person who is not a party of a party's costs where there has been serious misconduct by the non-party (see rule 76.10);

(g)section 109 of the Magistrates' Courts Act 1980, section 52 of the Senior Courts Act 1981 and rule 76.6, for the payment by an appellant of a respondent's costs on abandoning an appeal to the Crown Court (see rule 76.6);

(h)section 52 of the Senior Courts Act 1981 and rule 76.6, for the payment by a party of another party's costs on an appeal to the Crown Court in any case not covered by (c) or (g) (see rule 76.6);

(i)section 8 of the Bankers Books Evidence Act 1879, for the payment of costs by a party or by the bank against which an application for an order is made (see rule 76.7);

(j)section 2C(8) of the Criminal Procedure (Attendance of Witnesses) Act 1965, for the payment by the applicant for a witness summons of the costs of a party who applies successfully under rule 28.7 to have it withdrawn (see rule 76.7);

(k)section 36(5) of the Criminal Justice Act 1972 or Schedule 3, paragraph 11, of the Criminal Justice Act 1988, for the payment out of central funds of a defendant's costs on a reference by the Attorney General of-

(i)a point of law, or

(ii)an unduly lenient sentence

(see rule 76.4);

(l)section 159(5) of the Criminal Justice Act 1988, for the payment by a person of another person's costs on an appeal about a reporting or public access restriction (see rule 76.6);

(m)section 14H(5) of the Football Spectators Act 1989, for the payment by a defendant of another person's costs on an application to terminate a football banning order (see rule 76.7);

(n)section 4(7) of the Dangerous Dogs Act 1991, for the payment by a defendant of another person's costs on an application to terminate a disqualification for having custody of a dog (see rule 76.7);

(o)article 14 of The Serious Crime Act 2007 (Appeals under Section 24) Order 2008(807), corresponding with section 16 of the Prosecution of Offences Act 1985 (see rule 76.4);

(p)article 15 of The Serious Crime Act 2007 (Appeals under Section 24) Order 2008, corresponding with section 18 of the Prosecution of Offences Act 1985 (see rule 76.6);

(q)article 16 of The Serious Crime Act 2007 (Appeals under Section 24) Order 2008, corresponding with an order under section 19(1) of the 1985 Act (see rule 76.8);

(r)article 17 of The Serious Crime Act 2007 (Appeals under Section 24) Order 2008, corresponding with an order under section 19A of the 1985 Act (see rule 76.9); or

(s)article 18 of The Serious Crime Act 2007 (Appeals under Section 24) Order 2008, corresponding with an order under section 19B of the 1985 Act (see rule 76.10).

See also the Criminal Costs Practice Direction.

Part 68 (Appeal to the Court of Appeal about conviction or sentence) contains rules about appeals against costs orders made in the Crown Court under the legislation listed in (c) above.

Part 63 (Appeal to the Crown Court) and Part 68 (Appeal to the Court of Appeal about conviction or sentence) contain rules about appeals against costs orders made under the legislation listed in (e) and (f) above.

As to costs in restraint or receivership proceedings under Part 2 of the Proceeds of Crime Act 2002(808), see rules 61.19 to 61.22.

A costs order can be enforced-

(a)against a defendant, under section 41(1) or (3) of the Administration of Justice Act 1970(809);

(b)against a prosecutor, under section 41(2) or (3) of the Administration of Justice Act 1970;

(c)against a representative, under regulation 3D of The Costs in Criminal Cases (General) Regulations 1986(810) or article 18 of The Serious Crime Act 2007 (Appeals under Section 24) Order 2008; or

(d)against a non-party, under regulation 3I of The Costs in Criminal Cases (General) Regulations 1986(811) or article 31 of the Serious Crime Act 2007 (Appeals under Section 24) Order 2008(812).

See also section 58, section 150(1) and Part III of the Magistrates' Courts Act 1980(813) and Schedule 5 to the Courts Act 2003(814).]

Costs orders: general rules

76.2.-(1) The court must not make an order about costs 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.

(2) The court may make an order about costs-

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

(b)without a hearing.

(3) In deciding what order, if any, to make about costs, the court must have regard to all the circumstances, including-

(a)the conduct of all the parties; and

(b)any costs order already made.

(4) If the court makes an order about costs, it must-

(a)specify who must, or must not, pay what, to whom; and

(b)identify the legislation under which the order is made, where there is a choice of powers.

(5) The court must give reasons if it-

(a)refuses an application for a costs order; or

(b)rejects representations opposing a costs order.

(6) If the court makes an order for the payment of costs-

(a)the general rule is that it will be for an amount that is sufficient reasonably to compensate the recipient for costs-

(i)actually, reasonably and properly incurred, and

(ii)reasonable in amount; but

(b)the court may order the payment of-

(i)a proportion of that amount,

(ii)a stated amount less than that amount,

(iii)costs from or until a certain date only,

(iv)costs relating only to particular steps taken, or

(v)costs relating only to a distinct part of the case.

(7) On an assessment of the amount of costs, relevant factors include-

(a)the conduct of all the parties;

(b)the particular complexity of the matter or the difficulty or novelty of the questions raised;

(c)the skill, effort, specialised knowledge and responsibility involved;

(d)the time spent on the case;

(e)the place where and the circumstances in which work or any part of it was done; and

(f)any direction or observations by the court that made the costs order.

(8) If the court orders a party to pay costs to be assessed under rule 76.11, it may order that party to pay an amount on account.

(9) An order for the payment of costs takes effect when the amount is assessed, unless the court exercises any power it has to order otherwise.

[Note. Under the powers to which apply rule 76.8 (costs resulting from unnecessary or improper act, etc.) and rule 76.9 (costs against a legal representative), specified conduct must be established for such orders to be made.

The amount recoverable under a costs order may be affected by the legislation under which the order is made.

Under section 141 of the Powers of Criminal Courts (Sentencing) Act 2000(815) and section 75 of the Magistrates' Courts Act 1980(816), the Crown Court and magistrates' court respectively can allow time for payment, or payment by instalments.]

Court's power to vary requirements under Sections 2, 3 and 4

76.3.-(1) The court may-

(a)extend a time limit for serving an application or representations under section 2, 3 or 4 of this Part, even after it has expired; and

(b)consider an application or representations-

(i)made in a different form to one set out in the Practice Direction, or

(ii)made orally instead of in writing.

(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.

SECTION 2: COSTS OUT OF CENTRAL FUNDS

Costs out of central funds

76.4.-(1) This rule applies where the court can order the payment of costs out of central funds.

(2) In this rule, costs-

(a)include-

(i)on an appeal, costs incurred in the court that made the decision under appeal, and

(ii)at a retrial, costs incurred at the initial trial and on any appeal; but

(b)do not include costs funded by the Legal Services Commission.

(3) The court may make an order-

(a)on application by the person who incurred the costs; or

(b)on its own initiative.

(4) Where a person wants the court to make an order that person must-

(a)apply as soon as practicable; and

(b)outline the type of costs and the amount claimed, if that person wants the court to direct an assessment; or

(c)specify the amount claimed, if that person wants the court to assess the amount itself.

(5) The general rule is that the court will make an order, but-

(a)the court may decline to make a defendant's costs order if, for example-

(i)the defendant is convicted of at least one offence, or

(ii)the defendant's conduct led the prosecutor reasonably to think the prosecution case stronger than it was; and

(b)the court may decline to make a prosecutor's costs order if, for example, the prosecution was started or continued unreasonably.

(6) If the court makes an order-

(a)it may direct an assessment under, as applicable-

(i)regulations 4 to 12 of The Costs in Criminal Cases (General) Regulations 1986(817), or

(ii)articles 21 to 28 of The Serious Crime Act 2007 (Appeals under Section 24) Order 2008(818);

(b)it may assess the amount itself, if the recipient agrees;

(c)it must assess the amount itself, in a case in which it decides not to allow an amount that is reasonably sufficient to compensate the recipient for expenses properly incurred in the proceedings.

[Note. See also rule 76.2.

An order for the payment of costs out of central funds can be made-

(a)for a defendant-

(i)on acquittal,

(ii)where a prosecution does not proceed,

(iii)where the Crown Court allows any part of a defendant's appeal from a magistrates' court,

(iv)where the Court of Appeal allows any part of a defendant's appeal from the Crown Court,

(v)where the Court of Appeal decides a prosecutor's appeal under Part 66 (appeal to the Court of Appeal against ruling at preparatory hearing) or Part 67 (appeal to the Court of Appeal against ruling adverse to prosecution),

(vi)where the Court of Appeal decides a reference by the Attorney General under Part 70 (reference to the Court of Appeal of point of law or unduly lenient sentence), or

(vii)where the Court of Appeal decides an appeal by someone other than the defendant about a serious crime prevention order;

(See section 16 of the Prosecution of Offences Act 1985 and regulation 14 of The Costs in Criminal Cases (General) Regulations 1986(819); section 36(5) of the Criminal Justice Act 1972 and paragraph 11 of Schedule 3 to the Criminal Justice Act 1988; and article 14 of The Serious Crime Act 2007 (Appeals under Section 24) Order 2008.)

(b)for a private prosecutor, in proceedings in respect of an offence that must or may be tried in the Crown Court;

(See section 17 of the Prosecution of Offences Act 1985 and regulation 14 of The Costs in Criminal Cases (General) Regulations 1986.)

(c)for a person adversely affected by a serious crime prevention order, where the Court of Appeal-

(i)allows an appeal by that person about that order, or

(ii)decides an appeal about that order by someone else.

(See article 14 of The Serious Crime Act 2007 (Appeals under Section 24) Order 2008.)]

SECTION 3: PAYMENT OF COSTS BY ONE PARTY TO ANOTHER

Costs on conviction and sentence

76.5.-(1) This rule applies where the court can order a defendant to pay the prosecutor's costs if the defendant is-

(a)convicted or found guilty;

(b)dealt with in the Crown Court after committal for sentence there; or

(c)dealt with for breach of a sentence.

(2) The court may make an order-

(a)on application by the prosecutor; or

(b)on its own initiative.

(3) Where the prosecutor wants the court to make an order-

(a)the prosecutor must-

(i)apply as soon as practicable, and

(ii)specify the amount claimed; and

(b)the general rule is that the court will make an order if it is satisfied that the defendant can pay; but

(c)the court may decline to do so.

(4) A defendant who wants to oppose an order must make representations as soon as practicable.

(5) If the court makes an order, it must assess the amount itself.

[Note. See-

(a)rule 76.2; and

(b)section 18 of the Prosecution of Offences Act 1985(820) and regulation 14 of The Costs in Criminal Cases (General) Regulations 1986.

Under section 18(4) and (5) of the 1985 Act, if a magistrates' court-

(a)imposes a fine, a penalty, forfeiture or compensation that does not exceed £5-

(i)the general rule is that the court will not make a costs order against the defendant, but

(ii)the court may do so;

(b)fines a defendant under 18, no costs order against the defendant may be for more than the fine.

Part 68 (Appeal to the Court of Appeal about conviction or sentence) contains rules about appeal against a Crown Court costs order to which this rule applies.]

Costs on appeal

76.6.-(1) This rule-

(a)applies where a magistrates' court, the Crown Court or the Court of Appeal can order a party to pay another person's costs on an appeal, or an application for permission to appeal;

(b)authorises the Crown Court, in addition to its other powers, to order a party to pay another party's costs on an appeal to that court, except on an appeal under-

(i)section 108 of the Magistrates' Courts Act 1980(821), or

(ii)section 45 of the Mental Health Act 1983(822).

(2) In this rule, costs include-

(a)costs incurred in the court that made the decision under appeal; and

(b)costs funded by the Legal Services Commission.

(3) The court may make an order-

(a)on application by the person who incurred the costs; or

(b)on its own initiative.

(4) A person who wants the court to make an order must-

(a)apply as soon as practicable;

(b)notify each other party;

(c)specify-

(i)the amount claimed, and

(ii)against whom; and

(d)where an appellant abandons an appeal to the Crown Court by serving a notice of abandonment-

(i)apply in writing not more than 14 days later, and

(ii)serve the application on the appellant and on the Crown Court officer.

(5) A party who wants to oppose an order must-

(a)make representations as soon as practicable; and

(b)where the application was under paragraph (4)(d), serve written representations on the applicant, and on the Crown Court officer, not more than 7 days after it was served.

(6) Where the application was under paragraph (4)(d), the Crown Court officer may-

(a)submit it to the Crown Court; or

(b)serve it on the magistrates' court officer, for submission to the magistrates' court.

(7) If the court makes an order, it may direct an assessment under rule 76.11, or assess the amount itself where-

(a)the appellant abandons an appeal to the Crown Court;

(b)the Crown Court decides an appeal, except an appeal under-

(i)section 108 of the Magistrates' Courts Act 1980, or

(ii)section 45 of the Mental Health Act 1983; or

(c)the Court of Appeal decides an appeal to which Part 69 applies (appeal to the Court of Appeal regarding reporting or public access restriction).

(8) If the court makes an order in any other case, it must assess the amount itself.

[Note. See also rule 76.2.

A magistrates' court can order an appellant to pay a respondent's costs on abandoning an appeal to the Crown Court.

The Crown Court can order-

(a)the defendant to pay the prosecutor's costs on dismissing a defendant's appeal-

(i)against conviction or sentence, under section 108 of the Magistrates' Courts Act 1980, or

(ii)where the magistrates' court makes a hospital order or guardianship order without convicting the defendant, under section 45 of the Mental Health Act 1983; and

(b)one party to pay another party's costs on deciding any other appeal to which Part 63 applies.

The Court of Appeal can order-

(a)the defendant to pay another person's costs on dismissing a defendant's appeal or application to which Part 66 (appeal to the Court of Appeal against ruling at preparatory hearing), Part 68 (appeal to the Court of Appeal about conviction or sentence) or Part 74 (appeal or reference to the Supreme Court) applies;

(b)the defendant to pay another person's costs on allowing a prosecutor's appeal to which Part 67 (appeal to the Court of Appeal against ruling adverse to the prosecution) applies;

(c)the appellant to pay another person's costs on dismissing an appeal or application by a person affected by a serious crime prevention order;

(d)one party to pay another party's costs on deciding an appeal to which Part 69 (appeal to the Court of Appeal regarding reporting or public access restriction) applies.

See section 109 of the Magistrates' Courts Act 1980(823); section 52 of the Senior Courts Act 1981(824) (which allows rules of court to authorise the Crown Court to order costs); section 18 of the Prosecution of Offences Act 1985; section 159(5) of the Criminal Justice Act 1988(825); and article 15 of The Serious Crime Act 2007 (Appeals under Section 24) Order 2008(826).]

Costs on an application

76.7.-(1) This rule applies where the court can order a party to pay another person's costs in a case in which-

(a)the court decides an application for the production in evidence of a copy of a bank record;

(b)a magistrates' court or the Crown Court decides an application to terminate-

(i)a football banning order, or

(ii)a disqualification for having custody of a dog; or

(c)the Crown Court allows an application to withdraw a witness summons.

(2) The court may make an order-

(a)on application by the person who incurred the costs; or

(b)on its own initiative.

(3) A person who wants the court to make an order must-

(a)apply as soon as practicable;

(b)notify each other party; and

(c)specify-

(i)the amount claimed, and

(ii)against whom.

(4) A party who wants to oppose an order must make representations as soon as practicable.

(5) If the court makes an order, it may direct an assessment under rule 76.11, or assess the amount itself.

[Note. See-

(a)rule 76.2;

(b)section 8 of the Bankers Books Evidence Act 1879(827);

(c)section 14H(5) of the Football Spectators Act 1989(828);

(d)section 2C(8) of the Criminal Procedure (Attendance of Witnesses) Act 1965(829); and

(e)section 4(7) of the Dangerous Dogs Act 1991(830).]

Costs resulting from unnecessary or improper act, etc.

76.8.-(1) This rule applies where the court can order a party to pay another party's costs incurred as a result of an unnecessary or improper act or omission by or on behalf of the first party.

(2) In this rule, costs include costs funded by the Legal Services Commission.

(3) The court may make an order-

(a)on application by the party who incurred such costs; or

(b)on its own initiative.

(4) A party who wants the court to make an order 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 (or, in the Court of Appeal, the Registrar), and

(ii)each other party;

(c)in that application specify-

(i)the party by whom costs should be paid,

(ii)the relevant act or omission,

(iii)the reasons why that act or omission meets the criteria for making an order,

(iv)the amount claimed, and

(v)those on whom the application has been served.

(5) Where the court considers making an order on its own initiative, it must-

(a)identify the party against whom it proposes making the order; and

(b)specify-

(i)the relevant act or omission,

(ii)the reasons why that act or omission meets the criteria for making an order, and

(iii)with the assistance of the party who incurred the costs, the amount involved.

(6) A party who wants to oppose an order must-

(a)make representations as soon as practicable; and

(b)in reply to an application, serve written representations on the applicant and on the court officer (or Registrar) not more than 7 days after it was served.

(7) If the court makes an order, it must assess the amount itself.

[Note. See-

(a)rule 76.2;

(b)section 19(1) of the Prosecution of Offences Act 1985(831) and regulation 3 of The Costs in Criminal Cases (General) Regulations 1986(832); and

(c)article 16 of The Serious Crime Act 2007 (Appeals under Section 24) Order 2008(833).

Under regulation 3(5) of the 1986 Regulations, if a magistrates' court fines a defendant under 17, no costs order to which this rule applies may be for more than the fine.

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

SECTION 4: OTHER COSTS ORDERS

Costs against a legal representative

76.9.-(1) This rule applies where-

(a)a party has incurred costs-

(i)as a result of an improper, unreasonable or negligent act or omission by a legal or other representative or representative's employee, or

(ii)which it has become unreasonable for that party to have to pay because of such an act or omission occurring after those costs were incurred; and

(b)the court can-

(i)order the representative responsible to pay such costs, or

(ii)prohibit the payment of costs to that representative.

(2) In this rule, costs include costs funded by the Legal Services Commission.

(3) The court may make an order-

(a)on application by the party who incurred such costs; or

(b)on its own initiative.

(4) A party who wants the court to make an order 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 (or, in the Court of Appeal, the Registrar),

(ii)the representative responsible,

(iii)each other party, and

(iv)any other person directly affected;

(c)in that application specify-

(i)the representative responsible,

(ii)the relevant act or omission,

(iii)the reasons why that act or omission meets the criteria for making an order,

(iv)the amount claimed, and

(v)those on whom the application has been served.

(5) Where the court considers making an order on its own initiative, it must-

(a)identify the representative against whom it proposes making that order; and

(b)specify-

(i)the relevant act or omission,

(ii)the reasons why that act or omission meets the criteria for making an order, and

(iii)with the assistance of the party who incurred the costs, the amount involved.

(6) A representative who wants to oppose an order must-

(a)make representations as soon as practicable; and

(b)in reply to an application, serve written representations on the applicant and on the court officer (or Registrar) not more than 7 days after it was served.

(7) If the court makes an order-

(a)the general rule is that it will do so without waiting until the end of the case, but it may postpone making the order; and

(b)it must assess the amount itself.

(8) Instead of making an order, the court may make adverse observations about the representative's conduct for use in an assessment where-

(a)a party's costs are-

(i)funded by the Legal Services Commission, or

(ii)to be paid out of central funds; or

(b)there is to be an assessment under rule 76.11.

[Note. See-

(a)rule 76.2;

(b)section 19A of the Prosecution of Offences Act 1985(834);

(c)article 17 of The Serious Crime Act 2007 (Appeals under Section 24) Order 2008(835); and

(d)article 27 of The Criminal Defence Service (Funding) Order 2007(836).

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

Part 63 (Appeal to the Crown Court) and Part 68 (Appeal to the Court of Appeal about conviction or sentence) contain rules about appeals against a costs order to which this rule applies.]

Costs against a third party

76.10.-(1) This rule applies where-

(a)there has been serious misconduct by a person who is not a party; and

(b)the court can order that person to pay a party's costs.

(2) In this rule, costs include costs funded by the Legal Services Commission.

(3) The court may make an order-

(a)on application by the party who incurred the costs; or

(b)on its own initiative.

(4) A party who wants the court to make an order 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 (or, in the Court of Appeal, the Registrar),

(ii)the person responsible,

(iii)each other party, and

(iv)any other person directly affected;

(c)in that application specify-

(i)the person responsible,

(ii)the relevant misconduct,

(iii)the reasons why the criteria for making an order are met,

(iv)the amount claimed, and

(v)those on whom the application has been served.

(5) Where the court considers making an order on its own initiative, it must-

(a)identify the person against whom it proposes making that order; and

(b)specify-

(i)the relevant misconduct,

(ii)the reasons why the criteria for making an order are met, and

(iii)with the assistance of the party who incurred the costs, the amount involved.

(6) A person who wants to oppose an order must-

(a)make representations as soon as practicable; and

(b)in reply to an application, serve written representations on the applicant and on the court officer (or Registrar) not more than 7 days after it was served.

(7) If the court makes an order-

(a)the general rule is that it will do so at the end of the case, but it may do so earlier; and

(b)it must assess the amount itself.

[Note. See-

(a)rule 76.2;

(b)section 19B of the Prosecution of Offences Act 1985 and regulation 3F of The Costs in Criminal Cases (General) Regulations 1986; and

(c)article 18 of The Serious Crime Act 2007 (Appeals under Section 24) Order 2008.

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

Part 63 (Appeal to the Crown Court) and Part 68 (Appeal to the Court of Appeal about conviction or sentence) contain rules about appeals against a costs order to which this rule applies.]

SECTION 5: ASSESSMENT OF COSTS

Assessment and re-assessment

76.11.-(1) This rule applies where the court directs an assessment under-

(a)rule 61.20 (Proceeds of Crime Act 2002 -� rules applicable to restraint and receivership proceedings, assessment of costs);

(b)rule 76.6 (costs on appeal); or

(c)rule 76.7 (costs on an application).

(2) The assessment must be carried out by the relevant assessing authority, namely-

(a)the court officer, where the direction was given by a magistrates' court or by the Crown Court; or

(b)the Registrar of Criminal Appeals, where the direction was given by the Court of Appeal.

(3) The party in whose favour the court made the costs order (-�the applicant') must-

(a)apply for an assessment-

(i)in writing, in any form required by the assessing authority, and

(ii)not more than 3 months after the costs order; and

(b)serve the application on-

(i)the assessing authority, and

(ii)the party against whom the court made the costs order (-�the respondent').

(4) The applicant must-

(a)summarise the work done;

(b)specify-

(i)each item of work done, giving the date, time taken and amount claimed,

(ii)any disbursements or expenses, including the fees of any advocate, and

(iii)any circumstances of which the applicant wants the assessing authority to take particular account; and

(c)supply-

(i)receipts or other evidence of the amount claimed, and

(ii)any other information or document for which the assessing authority asks, within such period as that authority may require.

(5) A respondent who wants to make representations about the amount claimed must-

(a)do so in writing; and

(b)serve the representations on the assessing authority, and on the applicant, not more than 21 days after service of the application.

(6) The assessing authority must-

(a)if it seems likely to help with the assessment, obtain any other information or document;

(b)resolve in favour of the respondent any doubt about what should be allowed; and

(c)serve the assessment on the parties.

(7) Where either party wants the amount allowed re-assessed-

(a)that party must-

(i)apply to the assessing authority, in writing and in any form required by that authority,

(ii)serve the application on the assessing authority, and on the other party, not more than 21 days after service of the assessment,

(iii)explain the objections to the assessment,

(iv)supply any additional supporting information or document, and

(v)ask for a hearing, if that party wants one; and

(b)a party who wants to make representations about an application for re-assessment must-

(i)do so in writing,

(ii)serve the representations on the assessing authority, and on the other party, not more than 21 days after service of the application, and

(iii)ask for a hearing, if that party wants one;

(c)the assessing authority-

(i)must arrange a hearing, in public or in private, if either party asks for one,

(ii)subject to that, may re-assess the amount allowed with or without a hearing,

(iii)must re-assess the amount allowed on the initial assessment, taking into account the reasons for disagreement with that amount and any other representations,

(iv)may maintain, increase or decrease the amount allowed on the assessment,

(v)must serve the re-assessment on the parties, and

(vi)must serve written reasons on the parties, if not more than 21 days later either party asks for such reasons.

(8) A time limit under this rule may be extended even after it has expired-

(a)by the assessing authority, or

(b)by the Senior Costs Judge, if the assessing authority declines to do so.

Appeal to a costs judge

76.12.-(1) This rule applies where-

(a)the assessing authority has re-assessed the amount allowed under rule 76.11; and

(b)either party wants to appeal against that amount.

(2) That party must-

(a)serve an appeal notice on-

(i)the Senior Costs Judge,

(ii)the other party, and

(iii)the assessing authority

not more than 21 days after service of the written reasons for the re-assessment;

(b)explain the objections to the re-assessment;

(c)serve on the Senior Costs Judge with the appeal notice-

(i)the applications for assessment and re-assessment,

(ii)any other information or document considered by the assessing authority,

(iii)the assessing authority's written reasons for the re-assessment, and

(iv)any other information or document for which a costs judge asks, within such period as the judge may require; and

(d)ask for a hearing, if that party wants one.

(3) A party who wants to make representations about an appeal must-

(a)serve representations in writing on-

(i)the Senior Costs Judge, and

(ii)the applicant

not more than 21 days after service of the appeal notice; and

(b)ask for a hearing, if that party wants one.

(4) Unless a costs judge otherwise directs, the parties may rely only on-

(a)the objections to the amount allowed on the initial assessment; and

(b)any other representations and material considered by the assessing authority.

(5) A costs judge-

(a)must arrange a hearing, in public or in private, if either party asks for one;

(b)subject to that, may determine an appeal with or without a hearing;

(c)may-

(i)consult the assessing authority,

(ii)consult the court which made the costs order, and

(iii)obtain any other information or document;

(d)must reconsider the amount allowed by the assessing authority, taking into account the objections to the re-assessment and any other representations;

(e)may maintain, increase or decrease the amount allowed on the re-assessment;

(f)may provide for the costs incurred by either party to the appeal; and

(g)must serve reasons for the decision on-

(i)the parties, and

(ii)the assessing authority.

(6) A costs judge may extend a time limit under this rule, even after it has expired.

[Note. The Criminal Costs Practice Direction sets out a form for use in connection with this rule.]

Appeal to a High Court judge

76.13.-(1) This rule applies where-

(a)a costs judge has determined an appeal under rule 76.12; and

(b)either party wants to appeal against the amount allowed.

(2) A party who wants to appeal-

(a)may do so only if a costs judge certifies that a point of principle of general importance was involved in the decision on the review; and

(b)must apply in writing for such a certificate and serve the application on-

(i)the costs judge,

(ii)the other party

not more than 21 days after service of the decision on the review.

(3) That party must-

(a)appeal to a judge of the High Court attached to the Queen's Bench Division as if it were an appeal from the decision of a master under Part 52 of the Civil Procedure Rules 1998(837); and

(b)serve the appeal not more than 21 days after service of the costs judge's certificate under paragraph (2).

(4) A High Court judge-

(a)may extend a time limit under this rule even after it has expired;

(b)has the same powers and duties as a costs judge under rule 76.12; and

(c)may hear the appeal with one or more assessors.

[Note. See also section 70 of the Senior Courts Act 1981(838).]

Application for an extension of time under Section 5

76.14. A party who wants an extension of time under rule 76.11, 76.12 or 76.13 must-

(a)apply in writing;

(b)explain the delay; and

(c)attach the application, representations or appeal for which the extension of time is needed.

GLOSSARY

EXPLANATORY NOTE

(This note is not part of the Rules)

The Criminal Procedure Rules 2011 consolidate The Criminal Procedure Rules 2010, S.I. 2010/60, with the amendments made by S.I. 2010/1921 and 2010/3026. The new Rules incorporate the further amendments listed beneath. Otherwise, they reproduce the rules that they supersede.

Amendments to notes to rules. The notes about disclosure, at the end of Part 22, the notes about eligibility for a special measures direction, at the end of Part 29, and the notes to rules 7.2, 19.11, 29.9, 32.9, 37.1, 40.4, 40.5, 40.7, 65.8, 65.9, 68.1, 68.3 and 76.1, all are amended to bring up to date the cross-references they contain.

These Rules come into force on 3rd October 2011.