The Criminal Procedure (Amendment) Rules 2011

The Criminal Procedure (Amendment) Rules 2011

SI number 3075 of 2011 (L.22)

Guide for Court Users, Staff and Practitioners

December 2011

Summary

On 2ndApril 2012, The Criminal Procedure (Amendment) Rules 2011 will come into force, affecting procedures used in magistrates’ courts, the Crown Court and the Court of Appeal, Criminal Division. The amendments affect The Criminal Procedure Rules 2011 and this Guide, intended for court users, staff and practitioners, explains the types of change.

A new Part 9, ‘Allocation and sending for trial’ is introduced. This replaces Part 12 ‘Sending for trial’, simplifying the rules.

The following additions and revisions are included:

• Part 3 Case management, rule 3.5 is amended to allow the court to require that issues should be identified in writing;
• Part 13 Dismissal of charges sent to the Crown Court, the time limits in rules 13.2 and 13.3 for applications to dismiss offences transferred or sent for trial are set at 28 days;
• Part 37 Trial in a magistrates’ court, rule 37.8 (Written guilty plea: special rules) is amended to make it clear that neither party need attend when the court deals with a written guilty plea;
• Part 50 Civil behaviour orders after verdict or finding, the rules at 50.2 and 50.4 are amended, to make it clear that the defendant must be allowed the opportunity to consider the evidence on which the court is going to rely when it makes one of the orders listed in rule 50.4;
• Part 57 Proceeds of Crime 2002: rules applicable to all proceedings and Part 58 Proceeds of Crime 2002: rules applicableonly to confiscation proceedings, the rules about service are deleted so that the general rules about service of documents in Part 4 apply instead; and
• Part 63 Appeal to the Crown Court, rule 63.10 is amended, to include reference to a qualifying judge advocate as a judge of the Crown Court.

The rules include cross-references to relevant legislation: in particular measures recently, or likely soon to be, brought into force. Certain notes have been amended, for the same reasons.

Background

Since 2005, the Criminal Procedure Rule Committee has made rules for the criminal courts in England and Wales. The rules govern the practice and procedure to be followed in the criminal courts - i.e. the criminal division of the Court of Appeal and (when dealing with any criminal cause or matter) the Crown Court and magistrates’ courts. The Criminal Procedure Rules 2011(SI no.1709 of 2011) came into force in October and this is the first amendment of them. The changes, made by The Criminal Procedure (Amendment) Rules 2011, will come into force on 2ndApril 2012.

1. New Provisions in The Criminal Procedure (Amendment) Rules 2011

Part 9 Allocation and sending for trial

A new Part 9 introduces rules about allocation and sending for trial.

The current arrangements

(a) At the moment, the Magistrates’ Courts Act 1980 allows magistrates’ courts to commit for trial in the Crown Court offences that are classified as ‘triable either way’, where:-

(i) the magistrates decide that their powers of sentencing (which are less than in the Crown Court) would be inadequate, were the defendant to be convicted of the offence; or

(ii) the defendant opts for trial in the Crown Court.

However, before a case can be committed for Crown Court trial, the magistrates must decide whether there is sufficient evidence. That process often is a formality, which nonetheless may delay the progress of the case.

(b) In some cases only (cases of alleged serious fraud, and cases of certain violent or sexual offences to which a child was a witness), the Criminal Justice Act 1987 and the Criminal Justice Act 1991, respectively, allow the prosecuting authority to transfer the case directly to the Crown Court for trial.

(c) The Crime and Disorder Act 1998 requires magistrates’ courts to send for trial in the Crown Court offences that are classified as ‘triable on indictment only’, and sometimes other offences related to them in some way. The magistrates are not required to assess the sufficiency of the evidence. Instead, the defendant can apply to the Crown Court to have the case dismissed, if he or she believes there is too little evidence to put him or her on trial.

The Criminal Justice Act 2003 dealt with changes to each of these arrangements and they were set out in Schedule 3. The Schedule has in the meantime been amended by other legislation.

The new arrangements

The Government has announced that it intends in 2012 to begin to implement amendments to the 1980 and 1998 Acts, so that magistrates’ courts can ‘send’ to the Crown Court for trial not only those cases that can only be tried there, but also cases that are ‘triable either way’, if :-

(i) the magistrates decide that their powers of sentencing would be inadequate, were the defendant to be convicted of the offence; or

(ii) the defendant opts for trial in the Crown Court.

Under these new powers, the magistrates will not have to consider whether the evidence is sufficient.

As mentioned above, the amendments to the 1980 and 1998 Acts are set out in Schedule 3 of the Criminal Justice Act 2003. Schedule 3 also repeals prosecutors’ powers to transfer cases under the 1987 and 1991 Acts, replacing them with a special ‘sending’ procedure. Just as under the existing ‘sending’ procedure, in any case sent for trial under the new powers the defendant can apply to the Crown Court to have the case dismissed, if he or she believes there is not enough evidence to put him or her on trial.

The new Part 9 rules establish the associated court procedures to support these changes. As the new powers to allocate and send are likely to be introduced in stages, the new rules are arranged in such a way that some of them (rules 9.6 and 9.8 to 9.14, inclusive) apply only to the new powers, while the other rules apply to the current ‘sending’ powers, as well as to the new ones.

[Note that a new rule 2.1(4) of the Criminal Procedure Rules is added, to provide for the rules to apply in stages corresponding with this anticipated implementation in increments.]

As the new powers to allocate and send are likely to be introduced in stages, the existing rules about committal and transfer for trial in Parts 10 and 11 of The Criminal Procedure Rules are retained, for the time being. So, too, are the existing rules about the dismissal of charges transferred or sent to the Crown Court, in Part 13 of the Rules. However, the Committee concluded that it would serve the statutory objective set by section 69 of the Courts Act 2003 to take the opportunity to harmonise the time limits for applications to dismiss, which until now have differed according to the Act under which a case had been ‘sent’ or transferred for trial.

As a result of the introduction of the new Part 9, Part 12 is no longer required and has been removed.

Rule 6 of the statutory instrument introduces the new Part 9, set out in the Schedule.

Rule 7 of the statutory instrument omits Part 12 from The Criminal Procedure Rules 2011.

2. Amendments of The Criminal Procedure Rules 2011

Some current rules in The Criminal Procedure Rules 2011 have been revised. The following amendments are made:

Part 2Understanding and applying the rules

A new Rule 2.1(4) (When the rules apply) is introduced, to confirm that Rule 9.6, and the rules in Section 3 of Part 9 (Allocation and sending for trial), apply only when amendments (Allocation of cases triable either way and sending cases to the Crown Court), made by Schedule 3 of the Criminal Justice Act 2003, come into force.

In Rule 2.3 (References to Acts of Parliament and to Statutory Instruments), a reference is updated. The Criminal Procedure and Investigations Act 1996 (Defence Disclosure Time Limits) Regulations 2011 have replaced The Criminal Procedure and Investigations Act 1996 (Defence Disclosure Time Limits) Regulations 1997 and so the example quoted has been replaced.

Rule 3 of the statutory instrument introduces these amendments.

Part 3 Case management

Rule 3.5(The court’s case management powers) has been revised.

A substituted rule 3.5(2)(h) provides that the court may require issues in the case to be identified in writing;that they should be determined separately and in what order they will be determined.

Rule 3.2(2)(a) of the Criminal Procedure Rules requires the court to pursue the early identification of ‘the real issues’. Rule 3.3(a) requires the parties actively to assist the court in doing so. Rule 3.10 requires that, in order to manage a trial or an appeal, ‘the court must establish, with the active assistance of the parties, what are the disputed issues’.

To help the court to secure an effective trial, concentrating on what is in issue between the prosecution and the defence and not dwelling on what is common ground between them, courts routinely use case management, or trial preparation, forms. The forms include questions directed to what is, and is not, in dispute. It was reported to the Committee that some courts were unsure of their powers to require the identification, in writing, of what was in issue; and the Committee agreed to clarify the rules accordingly.

Rule 4 of the statutory instrument introduces this amendment.

Part 6Investigation orders

The note to Rule 6.1 (When this Part applies) has been substituted, to include a qualifying judge advocate as one of the judges who may act as a Crown Court judge.

Schedule 2 to the Armed Forces Act 2011 amends the Senior Courts Act 1981 to allow ‘qualifying judge advocates’, who conduct military courts, to sit also as judges of the Crown Court.

The relevant note is amended to include references to this new category of Crown Court judge.

Rule 5 of the statutory instrument introduces this amendment.

Part 13Dismissal of charges transferred or sent to the Crown Court

Rule 13.2Written notice of oral application for dismissal and Rule 13.3 Written application for dismissal. The time limits for applications to dismiss offences transferred or sent for trial are amended from 14 days to 28 days.

This harmonises the time limits for applications to dismiss which until now differed according to the Act under which a case had been transferred or sent for trial.

Rule 8 of the statutory instrument introduces this amendment.

Part 16 Reporting, etc. restrictions

Rule 16.1 When this Part applies

The note to rule 16.1 is amended. The reference to paragraph 3 of Schedule 3 to the Crime and Disorder Act 1998 (sending for trial proceedings) is replaced with section 52A of, and paragraph 3 to, the Crime and Disorder Act 1998 (allocation and sending for trial proceedings).

The court can vary or remove reporting restrictions under certain legislation and the note sets out the related legislation. The reference to the measures in the Crime and Disorder Act 1998 has been updated, to take into account the coming into force of the new allocation and sending for trial legislation.

Rule 9 of the statutory instrument introduces this amendment.

Part 21Initial details of the prosecution case

Rule 21.1When this Part applies

The note confirms that this Part does not apply where an offence can be tried only in the Crown Court. The note is amended to refer users of the Rules to the new Part 9, Allocation and sending for trial, instead of the now-deleted Part 12 Sending for trial.

Rule 10 of the statutory instrument introduces this amendment.

Part 37 Trial in a magistrates’ court

Rule 37.8Written guilty plea: special rules

The paragraph 37.8(4) is replaced, to make it clear that when the court is dealing with a written guilty plea under this rule, neither party need attend.

Sections 12 and 12A of the Magistrates’ Courts Act 1980 allow a magistrates’ court to deal with an offence in a defendant’s absence, where it is one that can be tried only in a magistrates’ court and where the specified procedure has been followed. The procedure is often used in minor road traffic cases and in vehicle and television licensing cases. The defendant can send the court a notice that he or she wishes to plead guilty, with any explanation that he or she wants to give, but need not attend. The Act allows the court to deal with the case in the prosecutor’s absence, as well. The procedure is contained in rule 37.8 of The Criminal Procedure Rules.

It was reported to the Committee that, despite the defendant having chosen not to attend, and despite there being no need for the prosecutor to attend, courts sometimes wrongly expected that prosecutors should attend. The Committee decided to amend the rule to emphasise the expectation that, in such a case, a prosecutor need not attend unless, in its discretion, the court actively so required.

Rule 11 of the statutory instrument introduces this amendment.

Part 50 Civil behaviour orders after verdict or finding

Rule 50.2Behaviour orders: general rules

Rule 50.2 confirms that the court must not make a behaviour order unless the person to whom the order is to be directed has had the chance to consider what is being proposed and why and to make representations at a hearing (whether or not they actually turn up for that hearing).

The paragraph 50.2(1)(a) is amended, to make it clear that the person must have the opportunity to consider the evidence that is being offered to the court as it goes about deciding whether to make such an order.

Rule 50.4 Evidence to assist the court: special rules

Rule 50.4 deals with football banning orders, restraining orders, anti-social behaviour orders and drink banning orders. The rule is replaced, to make it clear that the defendant must be allowed an opportunity to consider the evidence on which the court is going to rely when making on its own initiative one of these types of orders.

Part 50 of the Criminal Procedure Rules governs the procedure on the making of one of a number of what the Rules describe as ‘civil behaviour orders’, being orders like an injunction made by a civil court but where breach of the order is an offence in its own right. The legislation creating some of these orders anticipates an application being made by the prosecutor, but each of them can be made by the court on its own initiative. The legislation creating four of these types of order explicitly contemplates the possibility of the court taking account of evidence other than the main evidence in the case, and one of those four – a restraining order, prohibiting the defendant from harassing someone – can be made even though the defendant is acquitted.

In the recent case of R v Kapotra, [2011] EWCA Crim 1843, the Court of Appeal held that the acquitted defendant had had insufficient notice of the proposed order, or of the evidence on which the Crown Court relied. The Committee decided to amend the rules, to emphasise the requirement for adequate notice.

Rule 12 of the statutory instrument introduces these amendments.

Part 57Proceeds of Crime Act 2002: rules applicable to all proceedings

Rule 57.1 Interpretation

The definition of ‘business day’ is deleted. That definition already is set out in Rule 2.2 and so there is no need to repeat it in another Part of The Criminal Procedure Rules.

Rule 57.11 Service of documents

This rule is altered to remove references to the service of documents. Instead, the general rules about service of documents in Part 4 of The Criminal Procedure Rules 2011 apply.

Rule 57.12 Service by an alternative method

This rule is deleted.

Rule 57.14Certificates of service

This rule is amended, to refer to rule 4.9 instead of rule 57.12.

Part 4 of The Criminal Procedure Rules provides for the service of documents in all cases to which the Rules apply, subject to any ‘special rules’. When the first Criminal Procedure Rules were made in 2005, Parts 57 and 58 contained special rules, making separate provision for service in proceedings under the Proceeds of Crime Act 2002 for the restraint and confiscation of assets representing proceeds of crime.

As time has passed, successive amendments to the Part 4 service rules have removed the advantage that there once was in maintaining those separate rules. In particular, the Part 4 rules that provide for the electronic service of documents now supersede the corresponding special rules in Part 57.

The Committee decided that the time had come to remove those ‘special’ rules, leaving the Part 4 rules to deal with service in all cases.

Rule 13 of the statutory instrument introduces these amendments.

Part 58 Proceeds of Crime Act 2002: rules applicable only to confiscation proceedings

Rule 58.12Payment of money in bank or building society account in satisfaction of confiscation order

This rule is altered to remove references to the service of documents. Instead, the rules in Part 4 apply.

The reason for this amendment is the same as that given above for the amendment of rule 57.14.

Rule 14 of the statutory instrument introduces this amendment.

Part 62 Contempt of court

Rule 62.9Initial procedure on failure to comply with a court order, etc.