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The Criminal Procedure Rules 2010

Type Statutory-Instrument

Publication 2010-01-11

State In force

Department Queen's Printer of Acts of Parliament

Source legislation.gov.uk

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[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

(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

(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;

(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[^f00248];

(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[^f00249] or under section 39 of the Children and Young Persons Act 1933[^f00250],

(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[^f00251], 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

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

(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

(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

(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

(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

(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.

PART 30 — USE OF LIVE TELEVISION LINK OTHER THAN FOR VULNERABLE WITNESSES

Contents of this Part

Overseas witness giving evidence in the Crown Court	rule 30.1

Overseas witness giving evidence in the Crown Court

30.1

(1) Any party may apply for leave under section 32(1) of the Criminal Justice Act 1988[^f00253] for evidence to be given through a live television link by a witness who is outside the United Kingdom.

(2) An application under paragraph (1), and any matter relating thereto which, by virtue of the following provisions of this rule, falls to be determined by the Crown Court, may be dealt with in chambers by any judge of the Crown Court.

(3) An application under paragraph (1) shall be made by giving notice in writing, which shall be in the form set out in the Practice Direction.

(4) An application under paragraph (1) shall be made within 28 days after the date of the committal of the defendant or, as the case may be, of the giving of a notice of transfer under section 4(1)(c) of the Criminal Justice Act 1987[^f00254], or of the service of copies of the documents containing the evidence on which the charge or charges are based under paragraph 1 of Schedule 3 to the Crime and Disorder Act 1998[^f00255], or of the preferring of a bill of indictment in relation to the case.

(5) The period of 28 days in paragraph (4) may be extended by the Crown Court, either before or after it expires, on an application made in writing, specifying the grounds of the application. The court officer shall notify all the parties of the decision of the Crown Court.

(6) The notice under paragraph (3) or any application under paragraph (5) shall be sent to the court officer and at the same time a copy thereof shall be sent by the applicant to every other party to the proceedings.

(7) A party who receives a copy of a notice under paragraph (3) shall, within 28 days of the date of the notice, notify the applicant and the court officer, in writing—

(a) whether or not he opposes the application, giving his reasons for any such opposition; and

(b) whether or not he wishes to be represented at any hearing of the application.

(8) After the expiry of the period referred to in paragraph (7), the Crown 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 applicant and such other party or parties as the court may direct may be represented;

(c) and the court officer shall notify the applicant and, where necessary, the other party or parties, of the time and place of any such hearing.

(9) The court officer shall notify all the parties of the decision of the Crown Court in relation to an application under paragraph (1) and, where leave is granted, the notification shall state—

(a) the country in which the witness will give evidence;

(b) if known, the place where the witness will give evidence;

(c) where the witness is to give evidence on behalf of the prosecutor, or where disclosure is required by section 5(7) of the Criminal Procedure and Investigations Act 1996[^f00256] (alibi) or by rules under section 81 of the Police and Criminal Evidence Act 1984[^f00257] (expert evidence), the name of the witness;

(d) the location of the Crown Court at which the trial should take place; and

(e) any conditions specified by the Crown Court in accordance with paragraph (10).

(10) The Crown Court dealing with an application under paragraph (1) may specify that as a condition of the grant of leave the witness should give the evidence in the presence of a specified person who is able and willing to answer under oath or affirmation any questions the trial judge may put as to the circumstances in which the evidence is given, including questions about any persons who are present when the evidence is given and any matters which may affect the giving of the evidence.

[Note. For the corresponding rule in the Court of Appeal, see rule 68.7.]

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

Contents of this Part

Restrictions on cross-examination of witness	rule 31.1
Appointment of legal representative by the court	rule 31.2
Appointment arranged by the accused	rule 31.3
Prohibition on cross-examination of witness	rule 31.4

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[^f00258].

(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

(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

(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 32 — INTERNATIONAL CO-OPERATION

Contents of this Part

Notice required to accompany process served outside
the United Kingdom and translations	rule 32.1
Proof of service outside the United Kingdom	rule 32.2
Supply of copy of notice of request for assistance abroad	rule 32.3
Persons entitled to appear and take part in proceedings
before a nominated court, and exclusion of the public	rule 32.4
Record of proceedings to receive evidence
before a nominated court	rule 32.5
Interpreter for the purposes of proceedings
involving a television or telephone link	rule 32.6
Record of television link hearing before a nominated court	rule 32.7
Record of telephone link hearing before a nominated court	rule 32.8
Overseas record	rule 32.9
Overseas freezing orders	rule 32.10

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[^f00259] (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

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;

(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[^f00260]) 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

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;

(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;

(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[^f00261]).

(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 keeping of a register by a magistrates’ court, 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[^f00262] 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 33 — EXPERT EVIDENCE

Contents of this Part

Reference to expert	rule 33.1
Expert’s duty to the court	rule 33.2
Content of expert’s report	rule 33.3
Service of expert evidence	rule 33.4
Expert to be informed of service of report	rule 33.5
Pre-hearing discussion of expert evidence	rule 33.6
Court’s power to direct that evidence is to be given by
a single joint expert	rule 33.7
Instructions to a single joint expert	rule 33.8
Court’s power to vary requirements under this Part	rule 33.9

[Note. For the use of an expert report as evidence, see section 30 of the Criminal Justice Act 1988[^f00263].]

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[^f00264]. It may be required also under section 11 of the Powers of Criminal Courts (Sentencing) Act 2000[^f00265], under Part III of the Mental Health Act 1983[^f00266]or under Part 12 of the Criminal Justice Act 2003[^f00267]. 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[^f00268]and section 5B of the Magistrates’ Courts Act 1980[^f00269]. A party who accepts another party’s expert’s conclusions may admit them as facts under section 10 of the Criminal Justice Act 1967[^f00270]. Evidence of examinations etc. on which an expert relies may be admissible under section 127 of the Criminal Justice Act 2003[^f00271].]

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

(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[^f00272], and under section 20(3) of the Criminal Procedure and Investigations Act 1996[^f00273], 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[^f00274]; sections 31 and 40 of the Criminal Procedure and Investigations Act 1996[^f00275]; and section 45 of the Courts Act 2003[^f00276].]

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 34 — HEARSAY EVIDENCE

Contents of this Part

When this Part applies	rule 34.1
Notice to introduce hearsay evidence	rule 34.2
Opposing the introduction of hearsay evidence	rule 34.3
Unopposed hearsay evidence	rule 34.4
Court’s power to vary requirements under this Part	rule 34.5

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[^f00277].

[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;

(d) it is in the interests of justice for it to be admissible.

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);

(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

(3) A prosecutor who wants to introduce such evidence must serve the notice not more than 14 days after the defendant pleads not guilty.

(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.

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;

(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;

(d) may discharge or vary a determination where it can do so under—

(i) section 8B of the Magistrates’ Courts Act 1980[^f00279] (ruling at pre-trial hearing in a magistrates’ court), or

(ii) section 9 of the Criminal Justice Act 1987[^f00280], or section 31 or 40 of the Criminal Procedure and Investigations Act 1996[^f00281] (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;

(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 35 — EVIDENCE OF BAD CHARACTER

Contents of this Part

When this Part applies	rule 35.1
Content of application or notice	rule 35.2
Application to introduce evidence of a non-defendant’s bad character	rule 35.3
Notice to introduce evidence of a defendant’s bad character	rule 35.4
Reasons for decisions	rule 35.5
Court’s power to vary requirements under this Part	rule 35.6

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[^f00282].

[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.

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; and

(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

[Note. The Practice Direction sets out forms of application and notice for use in connection with rules 35.3 and 35.4.

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;

(d) may discharge or vary a determination where it can do so under—

(i) section 8B of the Magistrates’ Courts Act 1980[^f00286] (ruling at pre-trial hearing in a magistrates’ court), or

(ii) section 9 of the Criminal Justice Act 1987[^f00287], or section 31 or 40 of the Criminal Procedure and Investigations Act 1996[^f00288] (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.

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 14 days after the defendant pleads not guilty.

(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

(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;

(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 application for use in connection with this rule.

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;

(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 36 — EVIDENCE OF A COMPLAINANT’S PREVIOUS SEXUAL BEHAVIOUR

Contents of this Part

When this Part applies	rule 36.1
Application for permission
to introduce evidence or cross-examine	rule 36.2
Content of application	rule 36.3
Service of application	rule 36.4
Reply to application	rule 36.5
Application for special measures	rule 36.6
Court’s power to vary requirements under this Part	rule 36.7

[Note: Section 41 of the Youth Justice and Criminal Evidence Act 1999[^f00289]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[^f00290], which among other things defines ‘sexual behaviour’ and ‘sexual offence’;

(b) section 43[^f00291], 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

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[^f00292] (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.

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[^f00296]. 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 37 — TRIAL AND SENTENCE IN A MAGISTRATES’ COURT

Contents of this Part

When this Part applies	rule 37.1
General rules	rule 37.2
Procedure on plea of not guilty	rule 37.3
Evidence of a witness in person	rule 37.4
Evidence by written statement	rule 37.5
Evidence by admission	rule 37.6
Procedure on plea of guilty	rule 37.7
Written guilty plea: special rules	rule 37.8
Application to withdraw a guilty plea	rule 37.9
Procedure if the court convicts	rule 37.10
Procedure where a party is absent	rule 37.11
Provision of documents for the court	rule 37.12
Place of trial	rule 37.13
Duty of justices’ legal adviser	rule 37.14
Duty of court officer	rule 37.15

[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[^f00297]and, in relation to a defendant under 18, sections 45[^f00298], 46[^f00299]and 48[^f00300]of the Children and Young Persons Act 1933, section 18 of the Children and Young Persons Act 1963[^f00301], section 47 of the Crime and Disorder Act 1998[^f00302]and section 9 of the Powers of Criminal Courts (Sentencing) Act 2000[^f00303].

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

(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;

(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[^f00309]and sections 46 and 47 of the Children and Young Persons Act 1933.

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;

(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[^f00317].

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

(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;

(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[^f00322]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[^f00323].

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[^f00331]. 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[^f00332]. 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[^f00333].]

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[^f00334];

(b) the defendant is at least 16 years old;

(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

[Note. The procedure set out in this rule is prescribed by sections 12 and 12A of the Magistrates’ Courts Act 1980[^f00335]. Under section 12(1)(a), the Secretary of State can specify offences to which the procedure will not apply. None has been specified.

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

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;

(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 guidelines issued by the Sentencing Guidelines Council, 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

(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

(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

(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[^f00338], and sections 143, 158, 164, 172 and 174 of the Criminal Justice Act 2003[^f00339].

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;

(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[^f00349].

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

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

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