THE CRIMINAL PROCEDURE RULES 2015 (SI NUMBER 2015/1490)
1.
Introduction
The Criminal Procedure Rules 2015 will come into force on 5th
October 2015. They affect procedures in all criminal courts. This
guidance sets out the main changes. Further the Lord Chief Justice
has handed down amendments to the Practice Direction, in particular
relating to case management and the use of a new Crown Court form.
2.
The Ministry of Justice website containing the Criminal Procedure
Rules (CrimPR), the Criminal Practice Directions (CPD) and Forms is
at http://www.justice.gov.uk/criminal/procrules_fin/index.htm .
3.
However the Criminal Procedure Rules website is not updated with
amendments until they have actually come into force. The 2015 Rules
can be found at
http://www.legislation.gov.uk/uksi/2015/1490/contents/made
4.
In the 10 years since the first rules were made subsequent changes
left the rules with empty Parts and some Parts in the wrong place. The
2015 rules have been significantly rearranged. For example rule 34
(hearsay) is now rule 20. Attached is a list of how the 2015 rules
correspond with the 2014 rules.
5.
The changes include both new rules and amendments to existing
ones. This guidance does not cover all the changes in the 2015 rules
but will highlight the main ones. They are listed below in
chronological order.
6.
Part 3 - Case Management
Rule 3.3 imposes on the parties to every case an explicit duty to
communicate with each other so as to find out whether a defendant is
likely to plead guilty or not guilty; what is agreed and what is
disputed; what information or other material is required and why, and
what is to be done, by whom and when. This applies in all cases and
at the beginning of the case and at the first reasonable opportunity
but in any event before the first hearing. The duty continues
throughout the proceedings.
7.
Rule 3.13 has been changed to take account of the new arrangements
in the Crown Court under which prosecutors are asked to distinguish
between cases in which a defendant is thought likely to plead guilty or
not guilty. Under the new arrangements a single pre-trial hearing in
the Crown Court, instead of two or more will be sufficient in many
cases. That hearing will take place earlier than the present PCMH.
The new hearing will be known as the Plea and Trial Preparation
Hearing (PTPH).
8.
These new arrangements are described in the revised CPD given by
the
LCJ
on
the
16
July,
which
can
be
seen
at
1
https://www.judiciary.gov.uk/publications/criminal-practicedirections-amendment-no-4/
9.
It sets out the details of when a PTPH should take place; what the
court will expect of the parties at that hearing; and in what
circumstances a further case management hearing should be
arranged. To support this process a new form has been devised and
its use is mandatory. It is vital that prosecutors are familiar with the
provisions of the CPD.
10.
Paragraph 3A.16 of the CPD states that the time between the sending
and the first appearance in the Crown Court must be consistent
within the Circuit (i.e. 21 or 28 days) and that there is sufficient time
to conduct the PTPH hearing. There is an expectation that an
indictment will be served in every case 7 days before the hearing.
However there will be cases where this is not possible. In such a case
a further case management hearing will be required see paragraph
3A.21.
11.
Before the first hearing the prosecution should serve material set out
at paragraph 3A.12. This includes a summary, the statements and
exhibits relied on, a summary of the defendant’s interview,
streamlined forensic report, any information relating to special
measures, bad character, and hearsay and any indication of expert or
medical evidence. Further in accordance with paragraph 3A.20 the
prosecution must serve sufficient evidence for the court to case
manage without the necessity of a further case management hearing
unless it falls within paragraph 3A.21. It is important that witness
availability is obtained for that hearing so that the court can fix a trial
date if necessary.
12.
Paragraph 3A.21 sets out the circumstances where a further hearing
is likely to be required. In addition, if there is good and just reason for
a further hearing (not specified in the CPD) a court can and should
order it under Part 1 (the overriding objective) because it is just to do
so.
13.
The CPD also applies to the magistrates’ court and the initiative
Transforming Summary Justice (TSJ). As mentioned above, paragraph
3A.12 sets out what documents should be served or material that
should be available at the first hearing in the magistrates’ court. This
should be read together with Part 8 below.
14.
Part 4 - Service of documents
Rule 4.6 allows for electronic service not only by sending a document
to the recipient, e.g. by email, but also by depositing the document at
a website address to which the recipient can gain access, e.g. by using
a password. The purpose of this will allow the court, and the parties
to be able to take part in case management online. For the same
reason rule 4.11 allows for electronic service to have effect on the
same business day that a document is sent or deposited, as long as
that takes place by 2.30pm.
2
15.
Further to allow for electronic service in as many circumstances as
possible rule 4.7 now only requires service by hand as required in the
notice alleging contempt and service by post where required by road
traffic legislation.
16.
Other changes to rule 4.3 relating to new rules in Part 46 dealing with
legal representatives allow for service of documents on an advocate at
court unless it is a document listed in rule 4.10.
17.
18.
19.
Part 5 - Applications by electronic means
Rule 5.1 allows for applications and notices, and for other information
needed by the court (e.g. service of the prosecution case) to be
submitted by electronic means where arrangements have been made
for that to be done.
When these arrangements are in place it will mean that the parties
will supply the information online. Until then the various prescribed
forms must be used (and still can be served electronically by email as
before).
Part 8 - Initial Details of the Prosecution Case
Part 8 has been amended to support the new arrangements for case
management in the magistrates’ court known as Transforming
Summary Justice (TSJ). Part 8 will apply in all cases irrespective of
the type of offence. Rule 8.3 distinguishes between (i) custody cases
and (ii) bail cases. In custody cases IDPC will consist of a summary of
evidence (MG5) and any previous convictions and in bail cases the
information in 8.3(b) if appropriate.
20.
Rule 8.3(b) is designed so that at the beginning of the case, more
information will be provided where the prosecutor does not expect a
defendant to plead guilty than in a case where a guilty plea is
expected. Rule 8.3 (iii) provides that information should be provided
where it is available to the prosecutor and he or she considers it
material for a plea, allocation or sentence. For example, on an
anticipated guilty plea in a summary only offence there may be no
need to serve a victim’s statement in every case. However, if the victim
has made a VPS, or the VPS is contained within their statement, it
should be served, in line with the Victims’ Code. The victim’s
statement and any other material should also be served if the
prosecutor thinks it will be material to the sentence passed by the
court, and it is available.
21.
Where it is an anticipated not guilty plea, all key and other evidence
to be adduced should be served, if it is available. More detail of what
material the police will provide can be found in the National File
Standards.
3
22.
23.
24.
Part 9 - Sending and allocation
Rules 9.9 and 9.13 now make it clear that the effect of a defendant
indicating a guilty plea, where those rules apply, will be the same as
the defendant pleading guilty at a trial in a magistrates’ court.
Part 15 - Disclosure
The notes to the rules now make reference to the new Code of Practice
issued under the CPIA, which provides for the timing of prosecution
disclosure of unused material in magistrates’ court.
Part 16 - Written witness statements
As a result of Deregulation Act 2015 the rules can now set the time
limits for objecting to the use of written statements served under
section 9 of the CJA 1967 and prescribe the circumstances in which
such statements and other written material need not be read aloud.
25.
Rule 16.4 now sets the time limits for objecting to written statements
served under section 9. The prosecutor must serve the section 9
statement before the hearing on the court and the defence. In addition
the prosecutor must serve a notice objecting to the introduction of the
written statement; giving the time limit in which to object i.e. not
more than 7 days after receiving the notice (unless extended by the
court); and if there is no objection that the court may require the
witness to give evidence or may decide not to do so.
26.
The rules now prescribe the circumstances in which written witness
statements and other written material must be read aloud, namely
whenever any member of the public, including a reporter is present in
court but not otherwise. See amendments to rules 24.5, 24.15 and
25.12.
27.
28.
Part 18 – Measures to assist a witness or defendant to give
evidence
Rules 18.23 and 18.26 are amended to allow a court on its own
initiative to receive evidence from a witness using a live link where
there is no objection or where the defendant is absent. This relates to
evidence given under section 51 of the CJA 2003 or section 32 of the
CJA 1988. It does not apply to applications for a special measures live
link.
Part 19 – Expert evidence
Rule 19.2 now requires an expert witness, as part of his or her duty to
the court to actively assist the court in complying with directions or
informing the court of any significant failure. For example, providing a
time by when a report must be served or warning of substantial delay
in the preparation of a report. This duty mirrors that which a party
has under Part 3.
4
29.
Part 23 – Restriction on cross-examination by a defendant
These rules replace the rules in Part 31 of the 2014 rules. Section 34
of the Youth Justice and Criminal Evidence Act 1999 prohibits an
unrepresented defendant from cross examining a witness in a sexual
case. Section 35 prohibits a defendant from cross examining a
protected witness in specified offences. Section 36 provides that where
sections 34 and 35 do not apply the court can prohibit cross
examination by an unrepresented defendant on application by a
prosecutor or the court’s own initiative.
30.
Rule 23.2 deals with the appointment of an advocate to cross-examine
a witness. The court must explain to a defendant the effect of the
prohibition and whether he wants to appoint his own lawyer. If not,
the court may appoint a lawyer on his behalf and give appropriate
directions. If the court appoints a lawyer it will give directions for
material to be supplied to the advocate. The appointment terminates
at the end of the cross-examination. There is a prescribed form
31.
Rule 23.4 deals with an application by the prosecutor to prohibit the
cross-examination under section 36. It sets out the information that
should be supplied to the court. To assist with this there is a
prescribed form authorised by the LCJ and set out in the Criminal
Practice Directions (see Rules website).
32.
The rules also deal with applications to discharge an order and
representations in response.
33.
34.
35.
36.
Part 25 – Trial and sentence in the Crown Court – Directions to
the jury
Rule 25.14 (giving effect to one of the Leveson Review
recommendations) now requires the judge (i) to give the jury
directions about the law at any time at which that will help the jurors
to evaluate the evidence, and (ii) when summing up the evidence for
them, to do so only to such an extent as is directly relevant and
necessary.
Part 26 – Misconduct by a juror
Rule 26.3 is amended in consequence of the creation by the Criminal
Justice and Courts Act 2015 of new offences that a juror may commit.
Rule 26.5 (surrender of electronic communication devices by jurors) is
added to supplement the new power to order the temporary
confiscation of mobile phones and similar devices.
The Criminal Practice Direction (CPD VI Trial 39M: Juries) published
and in force from the 16th July 2015 has also been amended. It gives
guidance on jury irregularities and sets out the procedure for the
judge and the parties to follow.
Part 27 – Retrial after acquittal
The rules in Part 27 replace the rules in Parts 40 and 41 of the 2014
Rules. Rule 27.2 applies to an application to quash an acquittal where
5
a defendant would not have been acquitted due to interference with or
intimidation of a juror or witness under the Criminal Procedure and
Investigations Act 1996.
37.
38.
39.
40.
41.
Rules 27.3 – 27.7 apply where there is an application to quash an
acquittal under the Criminal Justice Act 2003.
Part 31 – Behaviour orders
The EU Directive to which the Criminal Justice (European Protection
Order) regulations 2014 allows an EU member state to enforce a
prohibition or restriction imposed in another such State on one
person for the benefit of another. There are new rules in 31.9 and
31.10 and consequential amendments to other rules.
Part 33 – Confiscation and related proceedings
The rules in Part 33 reproduce the rules in Parts 56-61 of the 2014
Rules. They include a new rule at 33.14 (application for a compliance
order) and amendments which supplement provisions made by the
Serious Crime Act 2015 and the Modern Slavery Act 2015.
Part 42 – Confiscation and related proceedings; appeal to the
Court of Appeal
The rules in Part 42 reproduce the rules in Parts 71-73 of the 2014
Rules. They include amendments made the by the provisions
mentioned above in paragraph 39.
Part 49 – International Cooperation
There are new rules 49.11-13 which govern the practice and
procedure on applications to the Crown Court where an EU member
State can be asked to assist a court or to other authority in another
State which is engaged in the forfeiture or property, or in the restraint
or confiscation of the proceeds of crime.
6