Changes to the Criminal Procedure Rules

The Advocacy Team at Essex Legal Services set out the most important changes to the Criminal Procedure Rules for local authority lawyers.

It doesn’t seem that long ago that practise in criminal law was consolidated by the Criminal Procedure Rules 2010.

The Rules Committee has updated the Rules. Below are the key changes that local authority lawyers must bear in mind when instigating proceedings. Don’t forget to also check out relevant Practice Notes for guidance. In this ever changing landscape of criminal litigation we need to ensure our own processes reflect the obligations placed upon us as prosecutors, as outlined in the rules.

Gone are the days where the courts’ response to non-compliance was an adjournment. Today the courts are focussed on meeting their own throughput targets and are more likely to deal with non-compliance through the imposition of a costs order.

Case Management: Preparation for Crown Court Trial

Part 3 (Case Management) is enlarged to include new rules about preparation for Crown Court trial, as some of the existing rules are changed in consequence of including those new rules. The rules about pre-trial hearings in the Crown Court and about identifying the defence trial advocate, move from Rule 3.9 to the new rules. New Rules 3.13 to 3.26 are included to govern preparation for trial in the Crown Court. They include the rules about preparatory hearings which were in Part 15 of the Criminal Procedure Rules 2015.

Marking paper copies of the Crown Court indictment

The indictment which is the formal statement of the charge against the defendant in a Crown Court, can be created and served on the court electronically and if it is, then the date of its service will be clear. To establish exactly what offence the defendant is on trial for is obviously a crucially important point. For this reason it has been decided that requirements for endorsements of paper copies take place in order that there is no confusion.

Expert evidence

Part 33 (Expert Evidence) is amended to include new rules about an expert witness’s duty to the court and about establishing the reliability of expert evidence. Rule 33.1 is amended to redefine the scope and Rule 33.2 is amended to redefine an expert’s duty to the court. Rule 33.3 is amended to supply the procedure for introducing the summary of an expert’s conclusions, and to require service of information detrimental to an expert’s credibility. Rule 33.4 is amended to require that an expert’s report must include information relevant to assessing the reliability of the expert’s opinion.

It appears that the prompt introduction of expert evidence due to be relied upon at trial was introduced in order that parties and courts would have enough time to consider it carefully, and also to ensure the expert’s reports should deal explicitly with reliability, especially the reliability of scientific evidence.

There are a number of amendments to the rules, the purpose of all of which is to clarify what information the court is to have so as to be able to make an informed decision about the admissibility of expert evidence, having regard to the reliability of the expert’s opinion and where relevant, having regard to the expert’s credibility. Where expert evidence is unlikely to be in dispute the rules now provide for it to be introduced in the summary with a full report required only if the conclusions are contested.

Voiding proceedings, setting aside convictions and varying sentences

Part 37 (Trial and sentence in a Magistrates Court) is amended to include new rules about voiding proceedings under Section 14 of the Magistrates Courts Act 1980 and about setting aside a conviction or other order under Section 142 of that Act. Rule 37.1 is amended to redefine the scope of the part. Rules 37.11 and 37.15 are amended and Rule 37.16 is added to supply a procedure for dealing with the Section 14 statutory declaration. Rule 37.17 is added to supply a procedure for dealing with the Section 142 application. In Part 42 (Sentencing Procedures and Special Cases) Rule 42.4 (Variation of sentence) is amended.

Section 14 of the Magistrates Courts Act 1980 provides that Magistrates Court proceedings shall be void where the defendant makes a statutory declaration of his or her ignorance of those proceedings until after the beginning of the trial. Under new Rule 37.16 there are two possibilities provided for. Firstly where the defendant attends court personally to deliver the statutory declaration and secondly where the defendant delivers it by post or through someone else. In each case the rule requires the court to proceed as soon as possible with a fresh trial. In practice this appears to be immediately after the making of a statutory declaration.

Section 142 of the Magistrates Courts Act 1980 allows the Magistrates Court to set aside a conviction or vary or rescind a sentence or other order where doing that appears to the court to be in the interests of justice. New Rule 37.17 requires notice to be given to the other party and where a party proposes that conviction should be set aside, the new rule imposes the same requirements that apply where a defendant applies to withdraw a guilty plea. Rule 42.4, the variation of sentence rule allows the court in its discretion to vary a sentence in the defendant’s absence where for example the court discovers that it has made a mistake, as long as the variation is favourable to the defendant.

Trial and sentence in the Crown Court

New Part 38 (Trial and sentence in the Crown Court), a new Part 39 (Juries) are substituted for the old rules in Part 39 of the Criminal Procedure Rules 2013. They incorporate and codify a number of statutory and criminal procedural requirements that govern jury trial and formalise a practice that has been followed for some years at Crown Courts.

Part 38 sets out in a sequence that corresponds with the stages of the trial, and governs the procedure at each stage, including taking a guilty plea, if one is entered, or selecting a jury to try a contested case; the receipt of evidence; the summing up of the case and the taking of verdict; and the passing of sentence in the event of conviction.

Sexual Harm Prevention Orders and Criminal Behaviour Orders

In Part 50 (Civil Behaviour Orders effect after verdict or finding), Rule 50.3 (Application for Behaviour Order and Notice of terms of proposed order: Special Rules) is amended to apply it to two types of Behaviour Order introduced by the Anti-social Behaviour Crime and Policing Act 2014, namely Sexual Harm Prevention Orders and Criminal Behaviour Orders; and to supply a procedure for an application for a special measures direction to assist a witness on an application for a Criminal Behaviour Order or for an Anti-social Behaviour Order.

The Criminal Procedure (Amendment) Rules 2015

These add some new rules to the Criminal Procedure Rules 2014 and bring them up-to-date. The amendment rules: (a) add rules about what are called ground rule hearings to Part 3 of the Criminal Procedure Rules; and (b) add rules to Part 63 of the Criminal Procedure Rules requiring advance notice if further evidence is going to be used on an appeal to the Crown Court against a conviction by a Magistrates Court; and (c) include up-to-date references to other legislation.

Ground rules hearings

Rule 3.9 of the Criminal Procedure Rules requires the court, among other things, to take every reasonable step to encourage and to facilitate the attendance of witnesses who are needed, and to facilitate the participation of any person, including the defendant. Rule 3.9(6) provides for facilitating the participation of any person including giving directions as to the appropriate treatment or questioning of a witness or the defendant, especially where the court directs that such questioning is to be conducted through an intermediary. This amendment to Rule 3.9 adds a paragraph (7) which lists things the court should do when directions for appropriate treatment and questioning are required.

Service of the indictment

Rule 14.1 of the Criminal Procedure Rules sets the time limit for delivery (service) of a formal notice of a criminal charge or charges against the defendant (the indictment) where a case is due to be tried in the Crown Court. The processes of committal for trial to the Crown Court and of transfer for trial to that court were finally abolished with effect from 30 August 2013. Now serious cases instead are sent for trial by a Magistrates Court under statutory provisions that are listed in the notes to Rule 14.1. This amendment removes from the rule the reference to committal or transfer for trial now that no more cases will reach the Crown Court by those means.

Part 50 of the Criminal Procedure Rules governs the procedure on the making of a type of order which is not described as a sentence in the legislation which creates it but which operates as a court order requiring someone to behave in a particular way, rather like an injunction made by a civil court. However, a breach of such a statutory Behaviour Order is an offence in its own right. There is a list of such orders in the note to Rule 50.1.

Confiscation proceedings

Part 58 of the Criminal Procedure Rules governs the procedure where the court applies Part 2 of the Proceeds of Crime Act 2002 to make an order against the defendant confiscating the proceeds of crime.

Section 58 of the Policing and Crime Act 2009 allows certain police and other officers to apply for a court’s authority to realise seized property towards payment of a confiscation order.

Seizure and retention proceedings

Part 59 of the Criminal Procedure Rules governs the procedure where the court is asked to make an order (a restraint order) under Section 42 of the Proceeds of Crime Act 2002 preventing the disposal of assets that could be used to satisfy a Confiscation Order, if one is made.

Section 55 of the Policing and Crime Act 2009 allows certain police and other officers to apply for a court’s authority to search for and seize some types of property that then can be used to satisfy a Confiscation Order, if one is made, without needing a Restraint Order. Section 55 may soon be brought into force. New Rule 59.7 to 59.10 provide the procedures to be followed on making an application or bringing an appeal under the statutory provisions added to the Proceeds of Crime Act 2002 by Section 55.

Further evidence on an appeal to the Crown Court

Part 63 of the Criminal Procedure Rules governs the procedure on an appeal from the Magistrates Court to the Crown Court. That type of appeal is by way of a rehearing of the case, and where the appeal is going to conviction then usually the evidence on appeal is the same as was given at trial in the Magistrates Court. Sometimes however the prosecutor or defendant wants to introduce on appeal different evidence. It was sometimes argued that the time limits for giving notice of certain types of evidence, including hearsay and bad character evidence, to which time limits apply at trial, did not apply on appeal, with unfair consequences for the other party. As a result a new rule to Part 63 has been brought in imposing specific time limits where further evidence is to be introduced.

The new statutory provisions in these rules apply to offences alleged against an adult if the alleged offence can only be tried in a Magistrates Court and if in the event of conviction, the sentence for the offence cannot be imprisonment. Where the new provisions apply, the defendant can be tried by a single Justice of the Peace, on the basis of written material only, in the party’s absence and without a hearing. The new provisions require the Criminal Procedure Rules to prescribe the documents that the prosecutor must send to the defendant and to prescribe the period within which the defendant must respond to those documents before a single justice trial can take place.

Under Sections 37.8 and 37.9 the new rules require the prosecutors to send to the defendant (serve) documents setting out the facts of the alleged defence; documents containing or describing the other information relevant to defendants that the court will receive; a notice explaining the procedure that will apply; forms of notice for the defendant to send to the court if the defendant wants to do so, such as whether the defendant wants to plead guilty without attending court, or to plead guilty at court or to plead not guilty. The rule requires the defendant to send to the court any notice that he or she wants to give and any other written representations within 21 days of those documents being served on him or her.

This article was written by the Advocacy Team at Essex Legal Services.