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The Criminal Procedure Rules 2011

Type Statutory-Instrument

Publication 2011-07-07

Last updated 2012-10-01

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(b) identify each ground of opposition on which the respondent relies, numbering them consecutively (if there is more than one), concisely outlining each argument in support and identifying the ground of appeal to which each relates;

(d) identify any relevant authorities;

(e) include or attach any application for the following, with reasons—

(i) an extension of time within which to serve the respondent’s notice,

(ii) a direction to attend in person any hearing that the respondent could attend by live link, if the respondent is in custody;

(f) identify any other document or thing that the respondent thinks the court will need to decide the appeal.

Public interest ruling

67.8

(1) This rule applies where the appellant wants to appeal against a public interest ruling.

(2) The appellant must not serve on any defendant directly affected by the ruling—

(a) any written application to the Crown Court judge for permission to appeal; or

(b) an appeal notice,

if the appellant thinks that to do so in effect would reveal something that the appellant thinks ought not be disclosed.

(3) The appellant must not include in an appeal notice—

(a) the material that was the subject of the ruling; or

(b) any indication of what sort of material it is,

if the appellant thinks that to do so in effect would reveal something that the appellant thinks ought not be disclosed.

(4) The appellant must serve on the Registrar with the appeal notice an annex—

(a) marked to show that its contents are only for the court and the Registrar;

(b) containing whatever the appellant has omitted from the appeal notice, with reasons; and

(5) Rules 67.5(3) and 67.6(2) do not apply.

[Note. Rules 67.5(3) and 67.6(2) require the Crown Court judge to allow a defendant to make representations about (i) giving permission to appeal and (ii) expediting an appeal.]

Powers of Court of Appeal judge

67.9

A judge of the Court of Appeal may—

(a) give permission to appeal;

(b) revoke a Crown Court judge’s direction expediting an appeal; and

(c) where an appellant abandons an appeal, order a defendant’s acquittal, his release from custody and the payment of his costs,

as well as exercising the powers given by other legislation (including these Rules).

[Note. See section 73 of the Criminal Justice Act 2003.]

Renewing applications

67.10

Rule 65.5 (renewing an application refused by a judge or the Registrar) applies with a time limit of 5 business days.

Right to attend hearing

67.11

(1) A respondent who is in custody has a right to attend a hearing in public.

(2) The court or the Registrar may direct that such a respondent is to attend a hearing by live link.

[Note. See rule 65.6 (hearings).]

PART 68 — APPEAL TO THE COURT OF APPEAL ABOUT CONVICTION OR SENTENCE

Contents of this Part

When this Part applies	rule 68.1
Service of appeal notice	rule 68.2
Form of appeal notice	rule 68.3
Crown Court judge's certificate that case is fit for appeal	rule 68.4
Reference by Criminal Cases Review Commission	rule 68.5
Respondent's notice	rule 68.6
Adaptation of rules about introducing evidence	rule 68.7
Application for bail pending appeal or retrial	rule 68.8
Conditions of bail pending appeal or retrial	rule 68.9
Forfeiture of a recognizance given as a condition of bail	rule 68.10
Right to attend hearing	rule 68.11
Power to vary determination of appeal against sentence	rule 68.12
Directions about re-admission to hospital on dismissal of appeal	rule 68.13
Renewal or setting aside of order for retrial	rule 68.14

When this Part applies

68.1

(1) This Part applies where—

(a) a defendant wants to appeal under—

(i) Part 1 of the Criminal Appeal Act 1968[^f00708],

(ii) section 274(3) of the Criminal Justice Act 2003[^f00709],

(iii) paragraph 14 of Schedule 22 to the Criminal Justice Act 2003[^f00710], or

(iv) section 42 of the Counter Terrorism Act 2008[^f00711];

(b) the Criminal Cases Review Commission refers a case to the Court of Appeal under section 9 of the Criminal Appeal Act 1995[^f00712];

(c) a prosecutor wants to appeal to the Court of Appeal under section 14A(5A) of the Football Spectators Act 1989[^f00713];

(d) a party wants to appeal under section 74(8) of the Serious Organised Crime and Police Act 2005[^f00714];

(e) a person found in contempt of court wants to appeal under section 13 of the Administration of Justice Act 1960[^f00715] and section 18A of the Criminal Appeal Act 1968[^f00716]; or

(f) a person wants to appeal to the Court of Appeal under—

(i) section 24 of the Serious Crime Act 2007[^f00717], or

(ii) regulation 3C or 3H of The Costs in Criminal Cases (General) Regulations 1986[^f00718].

(2) A reference to an ‘appellant’ in this Part is a reference to such a party or person.

[Note. Under Part 1 (sections 1 to 32) of the Criminal Appeal Act 1968, a defendant may appeal against—

(a) a conviction (section 1 of the 1968 Act[^f00719]);

(b) a sentence (sections 9 and 10 of the 1968 Act[^f00720]);

(d) a finding of disability (section 15 of the 1968 Act[^f00721]);

(e) a hospital order, interim hospital order or supervision order under section 5 or 5A of the Criminal Procedure (Insanity) Act 1964[^f00722](section 16A of the 1968 Act[^f00723]).

Service of appeal notice

68.2

(1) The general rule is that an appellant must serve an appeal notice—

(a) on the Crown Court officer at the Crown Court centre where there occurred—

(i) the conviction, verdict, or finding,

(ii) the sentence, or

(iii) the order, or the failure to make an order

about which the appellant wants to appeal; and

(b) not more than—

(i) 28 days after that occurred, or

(ii) 21 days after the order, in a case in which the appellant appeals against a wasted or third party costs order.

(2) But an appellant must serve an appeal notice—

(a) on the Registrar instead where—

(i) the appeal is against a minimum term review decision under section 274(3) of, or paragraph 14 of Schedule 22 to, the Criminal Justice Act 2003, or

(ii) the Criminal Cases Review Commission refers the case to the court; and

(b) not more than 28 days after—

(i) the minimum term review decision about which the appellant wants to appeal, or

(ii) the Registrar serves notice that the Commission has referred a conviction.

[Note. The time limit for serving an appeal notice (a) on an appeal under Part 1 of the Criminal Appeal Act 1968 and (b) on an appeal against a finding of contempt of court is prescribed by sections 18 and 18A of the Criminal Appeal Act 1968. It may be extended, but not shortened.

Form of appeal notice

68.3

(1) An appeal notice must be in the form set out in the Practice Direction.

(2) The appeal notice must—

(a) specify—

(i) the conviction, verdict, or finding,

(ii) the sentence, or

(iii) the order, or the failure to make an order

about which the appellant wants to appeal;

(b) identify each ground of appeal on which the appellant relies, numbering them consecutively (if there is more than one) and concisely outlining each argument in support;

(c) identify the transcript that the appellant thinks the court will need, if the appellant wants to appeal against a conviction;

(d) identify the relevant sentencing powers of the Crown Court, if sentence is in issue;

(e) where the Criminal Cases Review Commission refers a case to the court, explain how each ground of appeal relates (if it does) to the reasons for the reference;

(f) summarise the relevant facts;

(g) identify any relevant authorities;

(h) include or attach any application for the following, with reasons—

(i) permission to appeal, if the appellant needs the court’s permission,

(ii) an extension of time within which to serve the appeal notice,

(iii) bail pending appeal,

(iv) a direction to attend in person a hearing that the appellant could attend by live link, if the appellant is in custody,

(v) the introduction of evidence, including hearsay evidence and evidence of bad character,

(vi) an order requiring a witness to attend court,

(vii) a direction for special measures for a witness,

(viii) a direction for special measures for the giving of evidence by the appellant;

(i) identify any other document or thing that the appellant thinks the court will need to decide the appeal.

[Note. In some legislation, including the Criminal Appeal Act 1968, permission to appeal is described as ‘leave to appeal’.

Crown Court judge's certificate that case is fit for appeal

68.4

(1) An appellant who wants the Crown Court judge to certify that a case is fit for appeal must—

(a) apply orally, with reasons, immediately after there occurs—

(i) the conviction, verdict, or finding,

(ii) the sentence, or

(iii) the order, or the failure to make an order

about which the appellant wants to appeal; or

(b) apply in writing and serve the application on the Crown Court officer not more than 14 days after that occurred.

(2) A written application must include the same information (with the necessary adaptations) as an appeal notice.

[Note. The Crown Court judge may certify that a case is fit for appeal under sections 1(2)(b), 11(1A), 12(b), 15(2)(b) or 16A(2)(b) of the Criminal Appeal Act 1968, under section 81(1B) of the Senior Courts Act 1981, under section 14A(5B) of the Football Spectators Act 1989 or under section 24(4) of the Serious Crime Act 2007.

Reference by Criminal Cases Review Commission

68.5

(1) The Registrar must serve on the appellant a reference by the Criminal Cases Review Commission.

(2) The court must treat that reference as the appeal notice if the appellant does not serve such a notice under rule 68.2.

Respondent's notice

68.6

(1) The Registrar—

(a) may serve an appeal notice on any party directly affected by the appeal; and

(b) must do so if the Criminal Cases Review Commission refers a conviction, verdict, finding or sentence to the court.

(2) Such a party may serve a respondent’s notice, and must do so if—

(a) that party wants to make representations to the court; or

(b) the court or the Registrar so directs.

(3) Such a party must serve the respondent’s notice on—

(a) the appellant;

(b) the Registrar; and

(4) Such a party must serve the respondent’s notice—

(a) not more than 14 days after the Registrar serves—

(i) the appeal notice, or

(ii) a direction to do so; or

(b) not more than 28 days after the Registrar serves notice that the Commission has referred a conviction.

(5) The respondent’s notice must be in the form set out in the Practice Direction.

(6) The respondent’s notice must—

(a) give the date on which the respondent was served with the appeal notice;

(b) identify each ground of opposition on which the respondent relies, numbering them consecutively (if there is more than one), concisely outlining each argument in support and identifying the ground of appeal to which each relates;

(d) summarise any relevant facts not already summarised in the appeal notice;

(e) identify any relevant authorities;

(f) include or attach any application for the following, with reasons—

(i) an extension of time within which to serve the respondent’s notice,

(ii) bail pending appeal,

(iii) a direction to attend in person a hearing that the respondent could attend by live link, if the respondent is in custody,

(iv) the introduction of evidence, including hearsay evidence and evidence of bad character,

(v) an order requiring a witness to attend court,

(vi) a direction for special measures for a witness; and

(g) identify any other document or thing that the respondent thinks the court will need to decide the appeal.

[Note. Part II of the Practice Direction sets out the circumstances in which the Registrar usually will serve a defendant’s appeal notice on the prosecutor.]

Adaptation of rules about introducing evidence

68.7

(1) The following Parts apply with such adaptations as the court or the Registrar may direct—

(a) Part 29 (measures to assist a witness or defendant to give evidence);

(b) Part 34 (hearsay evidence);

(d) Part 36 (evidence of a complainant’s previous sexual behaviour).

(2) But the general rule is that—

(a) a respondent who opposes an appellant’s application to which one of those Parts applies must do so in the respondent’s notice, with reasons;

(b) an appellant who opposes a respondent’s application to which one of those Parts applies must serve notice, with reasons, on—

(i) the Registrar, and

(ii) the respondent

not more than 14 days after service of the respondent’s notice; and

[Note. An application to introduce evidence or for directions about evidence must be included in, or attached to, an appeal notice or a respondent’s notice: see rule 68.3 and 68.6(6).

Application for bail pending appeal or retrial

68.8

(1) This rule applies where a party wants to make an application to the court about bail pending appeal or retrial.

(2) That party must serve an application in the form set out in the Practice Direction on—

(a) the Registrar, unless the application is with the appeal notice; and

(b) the other party.

(3) The court must not decide such an application without giving the other party an opportunity to make representations, including representations about any condition or surety proposed by the applicant.

[Note. See section 19 of the Criminal Appeal Act 1968[^f00733]and section 3(8) of the Bail Act 1976[^f00734]. An application about bail or about the conditions of bail may be made either by an appellant or respondent.

Conditions of bail pending appeal or retrial

68.9

(1) This rule applies where the court grants a party bail pending appeal or retrial subject to any condition that must be met before that party is released.

(2) The court may direct how such a condition must be met.

(3) The Registrar must serve a certificate in the form set out in the Practice Direction recording any such condition and direction on—

(a) that party;

(b) that party’s custodian; and

(4) A person directly affected by any such direction need not comply with it until the Registrar serves that person with that certificate.

(5) Unless the court otherwise directs, if any such condition or direction requires someone to enter into a recognizance it must be—

(a) in the form set out in the Practice Direction and signed before—

(i) the Registrar,

(ii) the custodian, or

(iii) someone acting with the authority of the Registrar or custodian;

(b) copied immediately to the person who enters into it; and

(6) Unless the court otherwise directs, if any such condition or direction requires someone to make a payment, surrender a document or take some other step—

(a) that payment, document or step must be made, surrendered or taken to or before—

(i) the Registrar,

(ii) the custodian, or

(iii) someone acting with the authority of the Registrar or custodian;

(b) the Registrar or the custodian, as appropriate, must serve immediately on the other a statement that the payment, document or step has been made, surrendered or taken, as appropriate.

(7) The custodian must release the appellant where it appears that any condition ordered by the court has been met.

(8) For the purposes of section 5 of the Bail Act 1976[^f00736] (record of decision about bail), the Registrar must keep a copy of—

(a) any certificate served under paragraph (3);

(b) a notice of hearing given under rule 65.7(1); and

(9) Where the court grants bail pending retrial the Registrar must serve on the Crown Court officer copies of the documents kept under paragraph (8).

Forfeiture of a recognizance given as a condition of bail

68.10

(1) This rule applies where—

(a) the court grants a party bail pending appeal or retrial; and

(b) the bail is subject to a condition that that party provides a surety to guarantee that he will surrender to custody as required; but

(2) The Registrar must serve notice on—

(a) the surety; and

(b) the prosecutor,

of the hearing at which the court may order the forfeiture of the recognizance given by that surety.

(3) The court must not forfeit a surety’s recognizance—

(a) less than 7 days after the Registrar serves notice under paragraph (2); and

(b) without giving the surety an opportunity to make representations at a hearing.

[Note. If the purpose for which a recognizance is entered is not fulfilled, that recognizance may be forfeited by the court. If the court forfeits a surety’s recognizance, the sum promised by that person is then payable to the Crown.]

Right to attend hearing

68.11

A party who is in custody has a right to attend a hearing in public unless—

(a) it is a hearing preliminary or incidental to an appeal, including the hearing of an application for permission to appeal; or

(b) that party is in custody in consequence of—

(i) a verdict of not guilty by reason of insanity, or

(ii) a finding of disability.

[Note. See rule 65.6 (hearings) and section 22 of the Criminal Appeal Act 1968[^f00737]. There are corresponding provisions in The Criminal Justice Act 2003 (Mandatory Life Sentences: Appeals in Transitional Cases) Order 2005[^f00738]and in The Serious Organised Crime and Police Act 2005 (Appeals under section 74) Order 2006[^f00739]. Under section 22 of the 1968 Act, the court may direct that an appellant who is in custody is to attend a hearing by live link.]

Power to vary determination of appeal against sentence

68.12

(1) This rule applies where the court decides an appeal affecting sentence in a party’s absence.

(2) The court may vary such a decision if it did not take account of something relevant because that party was absent.

(3) A party who wants the court to vary such a decision must—

(a) apply in writing, with reasons;

(b) serve the application on the Registrar not more than 7 days after—

(i) the decision, if that party was represented at the appeal hearing, or

(ii) the Registrar serves the decision, if that party was not represented at that hearing.

[Note. Section 22(3) of the Criminal Appeal Act 1968 allows the court to sentence in an appellant’s absence. There are corresponding provisions in The Criminal Justice Act 2003 (Mandatory Life Sentences: Appeals in Transitional Cases) Order 2005 and in The Serious Organised Crime and Police Act 2005 (Appeals under Section 74) Order 2006.]

Directions about re-admission to hospital on dismissal of appeal

68.13

(1) This rule applies where—

(a) an appellant subject to—

(i) an order under section 37(1) of the Mental Health Act 1983[^f00740] (detention in hospital on conviction), or

(ii) an order under section 5(2) of the Criminal Procedure (Insanity) Act 1964[^f00741] (detention in hospital on finding of insanity or disability)

has been released on bail pending appeal; and

(b) the court—

(i) refuses permission to appeal,

(ii) dismisses the appeal, or

(iii) affirms the order under appeal.

(2) The court must give appropriate directions for the appellant’s—

(a) re-admission to hospital; and

(b) if necessary, temporary detention pending re-admission.

Renewal or setting aside of order for retrial

68.14

(1) This rule applies where—

(a) a prosecutor wants a defendant to be arraigned more than 2 months after the court ordered a retrial under section 7 of the Criminal Appeal Act 1968[^f00742]; or

(b) a defendant wants such an order set aside after 2 months have passed since it was made.

(2) That party must apply in writing, with reasons, and serve the application on—

(a) the Registrar;

(b) the other party.

[Note. Section 8(1) and (1A) of the Criminal Appeal Act 1968[^f00743]set out the criteria for making an order on an application to which this rule applies.]

PART 69 — APPEAL TO THE COURT OF APPEAL REGARDING REPORTING OR PUBLIC ACCESS RESTRICTION

Contents of this Part

When this Part applies	rule 69.1
Service of appeal notice	rule 69.2
Form of appeal notice	rule 69.3
Advance notice of appeal against
order restricting public access	rule 69.4
Duty of applicant for order restricting public access	rule 69.5
Respondent's notice on appeal against reporting restriction	rule 69.6
Renewing applications	rule 69.7
Right to introduce evidence	rule 69.8
Right to attend hearing	rule 69.9

When this Part applies

69.1

(1) This Part applies where a person directly affected by an order to which section 159(1) of the Criminal Justice Act 1988[^f00744] applies wants to appeal against that order.

(2) A reference to an ‘appellant’ in this Part is a reference to such a party.

[Note. Section 159(1) of the Criminal Justice Act 1988 gives a ‘person aggrieved’ (in this Part described as a person directly affected) a right of appeal to the Court of Appeal against a Crown Court judge’s order—

(a) under section 4 or 11 of the Contempt of Court Act 1981[^f00745];

(b) under section 58(7) of the Criminal Procedure and Investigations Act 1996[^f00746];

(c) restricting public access to any part of a trial for reasons of national security or for the protection of a witness or other person; or

(d) restricting the reporting of any part of a trial.

Service of appeal notice

69.2

(1) An appellant must serve an appeal notice on—

(a) the Crown Court officer;

(b) the Registrar;

(d) any other person directly affected by the order against which the appellant wants to appeal.

(2) The appellant must serve the appeal notice not later than—

(a) the next business day after an order restricting public access to the trial;

(b) 10 business days after an order restricting reporting of the trial.

Form of appeal notice

69.3

(1) An appeal notice must be in the form set out in the Practice Direction.

(2) The appeal notice must—

(a) specify the order against which the appellant wants to appeal;

(b) identify each ground of appeal on which the appellant relies, numbering them consecutively (if there is more than one) and concisely outlining each argument in support;

(d) identify any relevant authorities;

(e) include or attach, with reasons—

(i) an application for permission to appeal,

(ii) any application for an extension of time within which to serve the appeal notice,

(iii) any application for a direction to attend in person a hearing that the appellant could attend by live link, if the appellant is in custody,

(iv) any application for permission to introduce evidence, and

(v) a list of those on whom the appellant has served the appeal notice; and

(f) attach any document or thing that the appellant thinks the court will need to decide the appeal.

[Note. An appellant needs the court’s permission to appeal in every case to which this Part applies.

Advance notice of appeal against order restricting public access

69.4

(1) This rule applies where the appellant wants to appeal against an order restricting public access to a trial.

(2) The appellant may serve advance written notice of intention to appeal against any such order that may be made.

(3) The appellant must serve any such advance notice—

(a) on—

(i) the Crown Court officer,

(ii) the Registrar,

(iii) the parties, and

(iv) any other person who will be directly affected by the order against which the appellant intends to appeal, if it is made; and

(b) not more than 5 business days after the Crown Court officer displays notice of the application for the order.

(4) The advance notice must include the same information (with the necessary adaptations) as an appeal notice.

(5) The court must treat that advance notice as the appeal notice if the order is made.

Duty of applicant for order restricting public access

69.5

(1) This rule applies where the appellant wants to appeal against an order restricting public access to a trial.

(2) The party who applied for the order must serve on the Registrar—

(a) a transcript or note of the application for the order; and

(b) any other document or thing that that party thinks the court will need to decide the appeal.

(3) That party must serve that transcript or note and any such other document or thing as soon as practicable after—

(a) the appellant serves the appeal notice; or

(b) the order, where the appellant served advance notice of intention to appeal.

Respondent's notice on appeal against reporting restriction

69.6

(1) This rule applies where the appellant wants to appeal against an order restricting the reporting of a trial.

(2) A person on whom an appellant serves an appeal notice may serve a respondent’s notice, and must do so if—

(a) that person wants to make representations to the court; or

(b) the court so directs.

(3) Such a person must serve the respondent’s notice on—

(a) the appellant;

(b) the Crown Court officer;

(d) the parties; and

(e) any other person on whom the appellant served the appeal notice.

(4) Such a person must serve the respondent’s notice not more than 3 business days after—

(a) the appellant serves the appeal notice; or

(b) a direction to do so.

(5) The respondent’s notice must be in the form set out in the Practice Direction.

(6) The respondent’s notice must—

(a) give the date on which the respondent was served with the appeal notice;

(b) identify each ground of opposition on which the respondent relies, numbering them consecutively (if there is more than one), concisely outlining each argument in support and identifying the ground of appeal to which each relates;

(d) identify any relevant authorities;

(e) include or attach any application for the following, with reasons—

(i) an extension of time within which to serve the respondent’s notice,

(ii) a direction to attend in person any hearing that the respondent could attend by live link, if the respondent is in custody,

(iii) permission to introduce evidence; and

(f) identify any other document or thing that the respondent thinks the court will need to decide the appeal.

Renewing applications

69.7

Rule 65.5 (renewing an application refused by a judge or the Registrar) applies with a time limit of 5 business days.

Right to introduce evidence

69.8

No person may introduce evidence without the court’s permission.

[Note. Section 159(4) of the Criminal Justice Act 1988 entitles the parties to give evidence, subject to procedure rules.]

Right to attend hearing

69.9

(1) A party who is in custody has a right to attend a hearing in public of an appeal against an order restricting the reporting of a trial.

(2) The court or the Registrar may direct that such a party is to attend a hearing by live link.

[Note. See rule 65.6 (hearings). The court must decide an application and an appeal without a hearing where the appellant wants to appeal against an order restricting public access to a trial: rule 65.6(3).]

PART 70 — REFERENCE TO THE COURT OF APPEAL OF POINT OF LAW OR UNDULY LENIENT SENTENCING

Contents of this Part

When this Part applies	rule 70.1
Service of notice of reference and application for permission	rule 70.2
Form of notice of reference and application for permission	rule 70.3
Registrar's notice to defendant	rule 70.4
Respondent's notice	rule 70.5
Variation or withdrawal of notice of reference
or application for permission	rule 70.6
Right to attend hearing	rule 70.7
Anonymity of defendant on reference of point of law	rule 70.8

When this Part applies

70.1

This Part applies where the Attorney General wants to—

(a) refer a point of law to the Court of Appeal under section 36 of the Criminal Justice Act 1972[^f00748]; or

(b) refer a sentencing case to the Court of Appeal under section 36 of the Criminal Justice Act 1988[^f00749].

[Note. Under section 36 of the Criminal Justice Act 1972, where a defendant is acquitted in the Crown Court the Attorney General may refer to the Court of Appeal a point of law in the case.

Service of notice of reference and application for permission

70.2

(1) The Attorney General must—

(a) serve on the Registrar—

(i) any notice of reference, and

(ii) any application for permission to refer a sentencing case; and

(b) with a notice of reference of a point of law, give the Registrar details of—

(i) the defendant affected,

(ii) the date and place of the relevant Crown Court decision, and

(iii) the relevant verdict and sentencing.

(2) The Attorney General must serve an application for permission to refer a sentencing case not more than 28 days after the last of the sentences in that case.

[Note. The time limit for serving an application for permission to refer a sentencing case is prescribed by paragraph 1 of Schedule 3 to the Criminal Justice Act 1988. It may be neither extended nor shortened.]

Form of notice of reference and application for permission

70.3

(1) A notice of reference and an application for permission to refer a sentencing case must be in the appropriate form set out in the Practice Direction, giving the year and number.

(2) A notice of reference of a point of law must—

(a) specify the point of law in issue and indicate the opinion that the Attorney General invites the court to give;

(b) identify each ground for that invitation, numbering them consecutively (if there is more than one) and concisely outlining each argument in support;

(d) summarise the relevant facts; and

(e) identify any relevant authorities.

(3) An application for permission to refer a sentencing case must—

(a) give details of—

(i) the defendant affected,

(ii) the date and place of the relevant Crown Court decision, and

(iii) the relevant verdict and sentencing;

(b) explain why that sentencing appears to the Attorney General unduly lenient, concisely outlining each argument in support; and

(4) A notice of reference of a sentencing case must—

(a) include the same details and explanation as the application for permission to refer the case;

(b) summarise the relevant facts; and

(5) Where the court gives the Attorney General permission to refer a sentencing case, it may treat the application for permission as the notice of reference.

Registrar's notice to defendant

70.4

(1) The Registrar must serve on the defendant—

(a) a notice of reference;

(b) an application for permission to refer a sentencing case.

(2) Where the Attorney General refers a point of law, the Registrar must give the defendant notice that—

(a) the outcome of the reference will not make any difference to the outcome of the trial; and

(b) the defendant may serve a respondent’s notice.

(3) Where the Attorney General applies for permission to refer a sentencing case, the Registrar must give the defendant notice that—

(a) the outcome of the reference may make a difference to that sentencing, and in particular may result in a more severe sentence; and

(b) the defendant may serve a respondent’s notice.

Respondent's notice

70.5

(1) A defendant on whom the Registrar serves a reference or an application for permission to refer a sentencing case may serve a respondent’s notice, and must do so if—

(a) the defendant wants to make representations to the court; or

(b) the court so directs.

(2) Such a defendant must serve the respondent’s notice on—

(a) the Attorney General; and

(b) the Registrar.

(3) Such a defendant must serve the respondent’s notice—

(a) where the Attorney General refers a point of law, not more than 28 days after—

(i) the Registrar serves the reference, or

(ii) a direction to do so;

(b) where the Attorney General applies for permission to refer a sentencing case, not more than 14 days after—

(i) the Registrar serves the application, or

(ii) a direction to do so.

(4) Where the Attorney General refers a point of law, the respondent’s notice must—

(a) identify each ground of opposition on which the respondent relies, numbering them consecutively (if there is more than one), concisely outlining each argument in support and identifying the Attorney General’s ground or reason to which each relates;

(b) summarise any relevant facts not already summarised in the reference;

(d) include or attach any application for the following, with reasons—

(i) an extension of time within which to serve the respondent’s notice,

(ii) permission to attend a hearing that the respondent does not have a right to attend,

(iii) a direction to attend in person a hearing that the respondent could attend by live link, if the respondent is in custody.

(5) Where the Attorney General applies for permission to refer a sentencing case, the respondent’s notice must—

(a) say if the respondent wants to make representations at the hearing of the application or reference; and

(b) include or attach any application for the following, with reasons—

(i) an extension of time within which to serve the respondent’s notice,

(ii) permission to attend a hearing that the respondent does not have a right to attend,

(iii) a direction to attend in person a hearing that the respondent could attend by live link, if the respondent is in custody.

Variation or withdrawal of notice of reference or application for permission

70.6

(1) This rule applies where the Attorney General wants to vary or withdraw—

(a) a notice of reference; or

(b) an application for permission to refer a sentencing case.

(2) The Attorney General—

(a) may vary or withdraw the notice or application without the court’s permission by serving notice on—

(i) the Registrar, and

(ii) the defendant

before any hearing of the reference or application; but

(b) at any such hearing, may only vary or withdraw that notice or application with the court’s permission.

Right to attend hearing

70.7

(1) A respondent who is in custody has a right to attend a hearing in public unless it is a hearing preliminary or incidental to a reference, including the hearing of an application for permission to refer a sentencing case.

(2) The court or the Registrar may direct that such a respondent is to attend a hearing by live link.

[Note. See rule 65.6 (hearings) and paragraphs 6 and 7 of Schedule 3 to the Criminal Justice Act 1988. Under paragraph 8 of that Schedule, the Court of Appeal may sentence in the absence of a defendant whose sentencing is referred.]

Anonymity of defendant on reference of point of law

70.8

Where the Attorney General refers a point of law, the court must not allow anyone to identify the defendant during the proceedings unless the defendant gives permission.

PART 71 — APPEAL TO THE COURT OF APPEAL UNDER THE PROCEEDS OF CRIME ACT 2002: GENERAL RULES

Contents of this Part

Extension of time	rule 71.1
Other applications	rule 71.2
Examination of witness by court	rule 71.3
Supply of documentary and other exhibits	rule 71.4
Registrar's power to require information from court of trial	rule 71.5
Hearing by single judge	rule 71.6
Determination by full court	rule 71.7
Notice of determination	rule 71.8
Record of proceedings and transcripts	rule 71.9
Appeal to the Supreme Court	rule 71.10

Extension of time

71.1

(1) An application to extend the time limit for giving notice of application for leave to appeal under Part 2 of the Proceeds of Crime Act 2002[^f00752] must—

(a) be included in the notice of appeal; and

(b) state the grounds for the application.

(2) The parties may not agree to extend any date or time limit set by this Part, Part 72 or Part 73, or by The Proceeds of Crime Act 2002 (Appeals under Part 2) Order 2003[^f00753].

Other applications

71.2

Rule 68.3(2)(h) (form of appeal notice) applies in relation to an application—

(a) by a party to an appeal under Part 2 of the Proceeds of Crime Act 2002 that, under article 7 of The Proceeds of Crime Act 2002 (Appeals under Part 2) Order 2003, a witness be ordered to attend or that the evidence of a witness be received by the Court of Appeal; or

(b) by the defendant to be given leave by the court to be present at proceedings for which leave is required under article 6 of the 2003 Order,

as it applies in relation to applications under Part I of the Criminal Appeal Act 1968[^f00754] and the form in which rule 68.3 requires notice to be given may be modified as necessary.

Examination of witness by court

71.3

Rule 65.7 (notice of hearings and decisions) applies in relation to an order of the court under article 7 of the Proceeds of Crime Act 2002 (Appeals under Part 2) Order 2003 to require a person to attend for examination as it applies in relation to such an order of the court under Part I of the Criminal Appeal Act 1968.

Supply of documentary and other exhibits

71.4

Rule 65.11 (Registrar’s duty to provide copy documents for appeal or reference) applies in relation to an appellant or respondent under Part 2 of the Proceeds of Crime Act 2002 as it applies in relation to an appellant and respondent under Part I of the Criminal Appeal Act 1968.

Registrar's power to require information from court of trial

71.5

The Registrar may require the Crown Court to provide the Court of Appeal with any assistance or information which they may require for the purposes of exercising their jurisdiction under Part 2 of the Proceeds of Crime Act 2002, The Proceeds of Crime Act 2002 (Appeals under Part 2) Order 2003, this Part or Parts 72 and 73.

Hearing by single judge

71.6

Rule 65.6(5) (hearings) applies in relation to a judge exercising any of the powers referred to in article 8 of The Proceeds of Crime Act 2002 (Appeals under Part 2) Order 2003[^f00755] or the powers in rules 72.2(3) and (4) (respondent’s notice), 73.2(2) (notice of appeal) and 73.3(6) (respondent’s notice), as it applies in relation to a judge exercising the powers referred to in section 31(2) of the Criminal Appeal Act 1968[^f00756].

Determination by full court

71.7

Rule 65.5 (renewing an application refused by a judge or the registrar) shall apply where a single judge has refused an application by a party to exercise in his favour any of the powers listed in article 8 of The Proceeds of Crime Act 2002 (Appeals under Part 2) Order 2003, or the power in rule 72.2(3) or (4) as it applies where the judge has refused to exercise the powers referred to in section 31(2) of the Criminal Appeal Act 1968.

Notice of determination

71.8

(1) This rule applies where a single judge or the Court of Appeal has determined an application or appeal under The Proceeds of Crime Act 2002 (Appeals under Part 2) Order 2003 or under Part 2 of the Proceeds of Crime Act 2002.

(2) The Registrar must, as soon as practicable, serve notice of the determination on all of the parties to the proceedings.

(3) Where a single judge or the Court of Appeal has disposed of an application for leave to appeal or an appeal under section 31 of the 2002 Act[^f00757], the registrar must also, as soon as practicable, serve the order on a court officer of the court of trial and any magistrates’ court responsible for enforcing any confiscation order which the Crown Court has made.

Record of proceedings and transcripts

71.9

Rule 65.8(2)(a) and (b) (duty of Crown Court officer – arranging recording of proceedings in Crown Court and arranging transcription) and rule 65.9 (duty of person transcribing proceedings in the Crown Court) apply in relation to proceedings in respect of which an appeal lies to the Court of Appeal under Part 2 of the Proceeds of Crime Act 2002 as they apply in relation to proceedings in respect of which an appeal lies to the Court of Appeal under Part I of the Criminal Appeal Act 1968.

Appeal to the Supreme Court

71.10

(1) An application to the Court of Appeal for leave to appeal to the Supreme Court under Part 2 of the Proceeds of Crime Act 2002 must be made—

(a) orally after the decision of the Court of Appeal from which an appeal lies to the Supreme Court; or

(b) in the form set out in the Practice Direction, in accordance with article 12 of The Proceeds of Crime Act 2002 (Appeals under Part 2) Order 2003 and served on the Registrar.

(2) The application may be abandoned at any time before it is heard by the Court of Appeal by serving notice in writing on the Registrar.

(3) Rule 65.6(5) (hearings) applies in relation to a single judge exercising any of the powers referred to in article 15 of the 2003 Order, as it applies in relation to a single judge exercising the powers referred to in section 31(2) of the Criminal Appeal Act 1968.

(4) Rule 65.5 (renewing an application refused by a judge or the Registrar) applies where a single judge has refused an application by a party to exercise in his favour any of the powers listed in article 15 of the 2003 Order as they apply where the judge has refused to exercise the powers referred to in section 31(2) of the 1968 Act.

(5) The form in which rule 65.5(2) requires an application to be made may be modified as necessary.

PART 72 — APPEAL TO THE COURT OF APPEAL UNDER THE PROCEEDS OF CRIME ACT 2002: PROSECUTOR'S APPEAL REGARDING CONFISCATION

Contents of this Part

Notice of appeal	rule 72.1
Respondent's notice	rule 72.2
Amendment and abandonment of appeal	rule 72.3

Notice of appeal

72.1

(1) Where an appellant wishes to apply to the Court of Appeal for leave to appeal under section 31 of the Proceeds of Crime Act 2002[^f00758], he must serve a notice of appeal in the form set out in the Practice Direction on—

(a) the Crown Court officer; and

(b) the defendant.

(2) When the notice of the appeal is served on the defendant, it must be accompanied by a respondent’s notice in the form set out in the Practice Direction for the defendant to complete and a notice which—

(a) informs the defendant that the result of an appeal could be that the Court of Appeal would increase a confiscation order already imposed on him, make a confiscation order itself or direct the Crown Court to hold another confiscation hearing;

(b) informs the defendant of any right he has under article 6 of the Proceeds of Crime Act 2002 (Appeals under Part 2) Order 2003[^f00759] to be present at the hearing of the appeal, although he may be in custody;

(i) to apply to the Court of Appeal for leave to be present at proceedings for which leave is required under article 6 of the 2003 Order, or

(ii) to present any argument to the Court of Appeal on the hearing of the application or, if leave is given, the appeal, and whether he wishes to present it in person or by means of a legal representative;

(d) draws to the defendant’s attention the effect of rule 71.4 (supply of documentary and other exhibits); and

(e) advises the defendant to consult a solicitor as soon as possible.

(3) The appellant must provide a Crown Court officer with a certificate of service stating that he has served the notice of appeal on the defendant in accordance with paragraph (1) or explaining why he has been unable to effect service.

Respondent's notice

72.2

(1) This rule applies where a defendant is served with a notice of appeal under rule 72.1.

(2) If the defendant wishes to oppose the application for leave to appeal, he must, not later than 14 days after the date on which he received the notice of appeal, serve on the Registrar and on the appellant a notice in the form set out in the Practice Direction—

(a) stating the date on which he received the notice of appeal;

(b) summarising his response to the arguments of the appellant; and

(3) The time for giving notice under this rule may be extended by the Registrar, a single judge or by the Court of Appeal.

(4) Where the Registrar refuses an application under paragraph (3) for the extension of time, the defendant shall be entitled to have his application determined by a single judge.

(5) Where a single judge refuses an application under paragraph (3) or (4) for the extension of time, the defendant shall be entitled to have his application determined by the Court of Appeal.

Amendment and abandonment of appeal

72.3

(1) The appellant may amend a notice of appeal served under rule 72.1 or abandon an appeal under section 31 of the Proceeds of Crime Act 2002—

(a) without the permission of the Court at any time before the Court of Appeal have begun hearing the appeal; and

(b) with the permission of the Court after the Court of Appeal have begun hearing the appeal,

by serving notice in writing on the Registrar.

(2) Where the appellant serves a notice abandoning an appeal under paragraph (1), he must send a copy of it to—

(a) the defendant;

(b) a court officer of the court of trial; and

(3) Where the appellant serves a notice amending a notice of appeal under paragraph (1), he must send a copy of it to the defendant.

(4) Where an appeal is abandoned under paragraph (1), the application for leave to appeal or appeal shall be treated, for the purposes of section 85 of the 2002 Act (conclusion of proceedings), as having been refused or dismissed by the Court of Appeal.

PART 73 — APPEAL TO THE COURT OF APPEAL UNDER POCA 2002: RESTRAINT OR RECEIVERSHIP ORDERS

Contents of this Part

Leave to appeal	rule 73.1
Notice of appeal	rule 73.2
Respondent's notice	rule 73.3
Amendment and abandonment of appeal	rule 73.4
Stay	rule 73.5
Striking out appeal notices and setting aside or imposing
conditions on leave to appeal	rule 73.6
Hearing of appeals	rule 73.7

Leave to appeal

73.1

(1) Leave to appeal to the Court of Appeal under section 43 or section 65 of the Proceeds of Crime Act 2002[^f00760] will only be given where—

(a) the Court of Appeal considers that the appeal would have a real prospect of success; or

(b) there is some other compelling reason why the appeal should be heard.

(2) An order giving leave may limit the issues to be heard and be made subject to conditions.

Notice of appeal

73.2

(1) Where an appellant wishes to apply to the Court of Appeal for leave to appeal under section 43 or 65 of the Proceeds of Crime Act 2002 Act, he must serve a notice of appeal in the form set out in the Practice Direction on the Crown Court officer.

(2) Unless the Registrar, a single judge or the Court of Appeal directs otherwise, the appellant must serve the notice of appeal, accompanied by a respondent’s notice in the form set out in the Practice Direction for the respondent to complete, on—

(a) each respondent;

(b) any person who holds realisable property to which the appeal relates; and

as soon as practicable and in any event not later than 7 days after the notice of appeal is served on a Crown Court officer.

(3) The appellant must serve the following documents with his notice of appeal—

(a) four additional copies of the notice of appeal for the Court of Appeal;

(b) four copies of any skeleton argument;

(d) four copies of any witness statement or affidavit in support of the application for leave to appeal;

(e) four copies of a suitable record of the reasons for judgment of the Crown Court; and

(f) four copies of the bundle of documents used in the Crown Court proceedings from which the appeal lies.

(4) Where it is not possible to serve all of the documents referred to in paragraph (3), the appellant must indicate which documents have not yet been served and the reasons why they are not currently available.

(5) The appellant must provide a Crown Court officer with a certificate of service stating that he has served the notice of appeal on each respondent in accordance with paragraph (2) and including full details of each respondent or explaining why he has been unable to effect service.

Respondent's notice

73.3

(1) This rule applies to an appeal under section 43 or 65 of the Proceeds of Crime Act 2002.

(2) A respondent may serve a respondent’s notice on the Registrar.

(3) A respondent who—

(a) is seeking leave to appeal from the Court of Appeal; or

(b) wishes to ask the Court of Appeal to uphold the decision of the Crown Court for reasons different from or additional to those given by the Crown Court,

must serve a respondent’s notice on the Registrar.

(4) A respondent’s notice must be in the form set out in the Practice Direction and where the respondent seeks leave to appeal to the Court of Appeal it must be requested in the respondent’s notice.

(5) A respondent’s notice must be served on the Registrar not later than 14 days after—

(a) the date the respondent is served with notification that the Court of Appeal has given the appellant leave to appeal; or

(b) the date the respondent is served with notification that the application for leave to appeal and the appeal itself are to be heard together.

(6) Unless the Registrar, a single judge or the Court of Appeal directs otherwise, the respondent serving a respondent’s notice must serve the notice on the appellant and any other respondent—

(a) as soon as practicable; and

(b) in any event not later than seven days,

after it is served on the Registrar.

Amendment and abandonment of appeal

73.4

(1) The appellant may amend a notice of appeal served under rule 73.2 or abandon an appeal under section 43 or 65 of the Proceeds of Crime Act 2002—

(a) without the permission of the Court at any time before the Court of Appeal have begun hearing the appeal; and

(b) with the permission of the Court after the Court of Appeal have begun hearing the appeal,

by serving notice in writing on the Registrar.

(2) Where the appellant serves a notice under paragraph (1), he must send a copy of it to each respondent.

Stay

73.5

Unless the Court of Appeal or the Crown Court orders otherwise, an appeal under section 43 or 65 of the Proceeds of Crime Act 2002 shall not operate as a stay of any order or decision of the Crown Court.

Striking out appeal notices and setting aside or imposing conditions on leave to appeal

73.6

(1) The Court of Appeal may—

(a) strike out the whole or part of a notice of appeal served under rule 73.2; or

(b) impose or vary conditions upon which an appeal under section 43 or 65 of the Proceeds of Crime Act 2002 may be brought.

(2) The Court of Appeal will only exercise its powers under paragraph (1) where there is a compelling reason for doing so.

(3) Where a party is present at the hearing at which leave to appeal was given, he may not subsequently apply for an order that the Court of Appeal exercise its powers under paragraph (1)(b).

Hearing of appeals

73.7

(1) This rule applies to appeals under section 43 or 65 of the Proceeds of Crime Act 2002.

(2) Every appeal will be limited to a review of the decision of the Crown Court unless the Court of Appeal considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing.

(3) The Court of Appeal will allow an appeal where the decision of the Crown Court was—

(a) wrong; or

(b) unjust because of a serious procedural or other irregularity in the proceedings in the Crown Court.

(4) The Court of Appeal may draw any inference of fact which it considers justified on the evidence.

(5) At the hearing of the appeal a party may not rely on a matter not contained in his notice of appeal unless the Court of Appeal gives permission.

PART 74 — APPEAL OR REFERENCE TO THE SUPREME COURT

Contents of this Part

When this Part applies	rule 74.1
Application for permission or reference	rule 74.2
Determination of detention pending appeal, etc.	rule 74.3
Bail pending appeal	rule 74.4

When this Part applies

74.1

(1) This Part applies where—

(a) a party wants to appeal to the Supreme Court after—

(i) an application to the Court of Appeal to which Part 41 applies (retrial following acquittal for serious offence), or

(ii) an appeal to the Court of Appeal to which applies Part 66 (appeal to the Court of Appeal against ruling at preparatory hearing), Part 67 (appeal to the Court of Appeal against ruling adverse to prosecution), or Part 68 (appeal to the Court of Appeal about conviction or sentence); or

(b) a party wants to refer a case to the Supreme Court after a reference to the Court of Appeal to which Part 70 applies (reference to the Court of Appeal of point of law or unduly lenient sentencing).

(2) A reference to an ‘appellant’ in this Part is a reference to such a party.

[Note. Under section 33 of the Criminal Appeal Act 1968[^f00761], a party may appeal to the Supreme Court from a decision of the Court of Appeal on—

(a) an application to the court under section 76 of the Criminal Justice Act 2003[^f00762](prosecutor’s application for retrial after acquittal for serious offence). See also Part 41.

(b) an appeal to the court under—

(i) section 9 of the Criminal Justice Act 1987[^f00763]or section 35 of the Criminal Procedure and Investigations Act 1996[^f00764](appeal against order at preparatory hearing). See also Part 66.

(ii) section 47 of the Criminal Justice Act 2003[^f00765](appeal against order for non-jury trial after jury tampering.) See also Part 66.

(iii) Part 9 of the Criminal Justice Act 2003[^f00766](prosecutor’s appeal against adverse ruling). See also Part 67.

(iv) Part 1 of the Criminal Appeal Act 1968[^f00767](defendant’s appeal against conviction, sentence, etc.). See also Part 68.

Application for permission or reference

74.2

(1) An appellant must—

(a) apply orally to the Court of Appeal—

(i) for permission to appeal or to refer a sentencing case, or

(ii) to refer a point of law

immediately after the court gives the reasons for its decision; or

(b) apply in writing and serve the application on the Registrar and every other party not more than—

(i) 14 days after the court gives the reasons for its decision if that decision was on a sentencing reference to which Part 70 applies (Attorney General’s reference of sentencing case), or

(ii) 28 days after the court gives those reasons in any other case.

(2) An application for permission to appeal or to refer a sentencing case must—

(a) identify the point of law of general public importance that the appellant wants the court to certify is involved in the decision; and

(b) give reasons why—

(i) that point of law ought to be considered by the Supreme Court, and

(ii) the court ought to give permission to appeal.

(3) An application to refer a point of law must give reasons why that point ought to be considered by the Supreme Court.

(4) An application must include or attach any application for the following, with reasons—

(a) an extension of time within which to make the application for permission or for a reference;

(b) bail pending appeal;

(5) A written application must be in the form set out in the Practice Direction.

[Note. In some legislation, including the Criminal Appeal Act 1968, permission to appeal is described as ‘leave to appeal’.

Determination of detention pending appeal, etc.

74.3

On an application for permission to appeal, the Court of Appeal must—

(a) decide whether to order the detention of a defendant who would have been liable to be detained but for the decision of the court; and

(b) determine any application for—

(i) bail pending appeal,

(ii) permission to attend any hearing in the Supreme Court, or

(iii) a representation order.

[Note. For the liability of a defendant to be detained pending a prosecutor’s appeal to the Supreme Court and afterwards, see—

(a) section 37 of the Criminal Appeal Act 1968[^f00785].

(b) article 19 of The Serious Organised Crime and Police Act 2005 (Appeals under Section 74) Order 2006[^f00786].

Bail pending appeal

74.4

Rules 68.8 (Application for bail pending appeal or retrial), 68.9 (Conditions of bail pending appeal or re-trial) and 68.10 (Forfeiture of a recognizance given as a condition of bail) apply.

PART 75 — REQUEST TO THE EUROPEAN COURT FOR A PRELIMINARY RULING

Contents of this Part

When this Part applies	rule 75.1
Preparation of request	rule 75.2
Submission of request	rule 75.3
Postponement of case pending request	rule 75.4

When this Part applies

75.1

This Part applies where the court can request the Court of Justice of the European Union (‘the European Court’) to give a preliminary ruling, under Article 267 of the Treaty on the Functioning of the European Union.

[Note. Under Article 267, if a court of a MemberState considers that a decision on the question is necessary to enable it to give judgment, it may request the European Courtto give a preliminary ruling concerning—

(a) the interpretation of the Treaty on European Union, or of the Treaty on the Functioning of the European Union;

(b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union.]

Preparation of request

75.2

(1) The court may—

(a) make an order for the submission of a request—

(i) on application by a party, or

(ii) on its own initiative;

(b) give directions for the preparation of the terms of such a request.

(2) The court must—

(a) include in such a request—

(i) the identity of the court making the request,

(ii) the parties’ identities,

(iii) a statement of whether a party is in custody,

(iv) a succinct statement of the question on which the court seeks the ruling of the European Court,

(v) a succinct statement of any opinion on the answer that the court may have expressed in any judgment that it has delivered,

(vi) a summary of the nature and history of the proceedings, including the salient facts and an indication of whether those facts are proved, admitted or assumed,

(vii) the relevant rules of national law,

(viii) a summary of the relevant contentions of the parties,

(ix) an indication of the provisions of European Union law that the European Court is asked to interpret, and

(x) an explanation of why a ruling of the European Court is requested;

(b) express the request in terms that can be translated readily into other languages; and

Submission of request

75.3

(1) The court officer must serve the order for the submission of the request on the Senior Master of the Queen’s Bench Division of the High Court.

(2) The Senior Master will—

(a) submit the request to the European Court; but

(b) unless the court otherwise directs, postpone the submission of the request until—

(i) the time for any appeal against the order has expired, and

(ii) any appeal against the order has been determined.

Postponement of case pending request

75.4

Where the court orders the submission of a request—

(a) the general rule is that it will adjourn or postpone any further hearing; but

(b) it may otherwise direct.

PART 76 — COSTS

Contents of this Part

Section 1: general
When this Part applies	rule 76.1
Costs orders: general rules	rule 76.2
Court's power to vary requirements under Sections 2, 3 and 4	rule 76.3

Section 2: costs out of central funds
Costs out of central funds	rule 76.4

Section 3: payment of costs by one party to another
Costs on conviction and sentence	rule 76.5
Costs on appeal	rule 76.6
Costs on an application	rule 76.7
Costs resulting from unnecessary or improper act, etc.	rule 76.8

Section 4: other costs orders
Costs against a legal representative	rule 76.9
Costs against a third party	rule 76.10

Section 5: assessment of costs
Assessment and re-assessment	rule 76.11
Appeal to a costs judge	rule 76.12
Appeal to a High Court judge	rule 76.13
Application for an extension of time under Section 5	rule 76.14

SECTION 1: GENERAL

When this Part applies

76.1

(1) This Part applies where the court can make an order about costs under—

(a) Part II of the Prosecution of Offences Act 1985[^f00789] and Part II, IIA or IIB of The Costs in Criminal Cases (General) Regulations 1986[^f00790];

(b) section 109 of the Magistrates’ Courts Act 1980[^f00791];

(d) section 8 of the Bankers Books Evidence Act 1879[^f00793];

(e) section 2C(8) of the Criminal Procedure (Attendance of Witnesses) Act 1965[^f00794];

(f) section 36(5) of the Criminal Justice Act 1972[^f00795];

(g) section 159(5) and Schedule 3, paragraph 11, of the Criminal Justice Act 1988[^f00796];

(h) section 14H(5) of the Football Spectators Act 1989[^f00797];

(i) section 4(7) of the Dangerous Dogs Act 1991[^f00798]; or

(j) Part 3 of The Serious Crime Act 2007 (Appeals under Section 24) Order 2008[^f00799].

(2) In this Part, ‘costs’ means—

(a) the fees payable to a legal representative;

(b) the disbursements paid by a legal representative; and

[Note. A costs order can be made under—

(a) section 16 of the Prosecution of Offences Act 1985[^f00800](defence costs), for the payment out of central funds of a defendant’s costs (see rule 76.4);

(b) section 17 of the Prosecution of Offences Act 1985[^f00801](prosecution costs), for the payment out of central funds of a private prosecutor’s costs (see rule 76.4);

(c) section 18 of the Prosecution of Offences Act 1985[^f00802](award of costs against accused), for the payment by a defendant of another person’s costs (see rules 76.5 and 76.6);

(d) section 19(1) of the Prosecution of Offences Act 1985[^f00803]and regulation 3 of The Costs in Criminal Cases (General) Regulations 1986, for the payment by a party of another party’s costs incurred as a result of an unnecessary or improper act or omission by or on behalf of the first party (see rule 76.8);

(e) section 19A of the Prosecution of Offences Act 1985[^f00804](costs against legal representatives, etc.)—

(i) for the payment by a legal representative of a party’s costs incurred as a result of an improper, unreasonable or negligent act or omission by or on behalf of the representative, or

(ii) disallowing the payment to that representative of such costs

(see rule 76.9);

(f) section 19B of the Prosecution of Offences Act 1985[^f00805](provision for award of costs against third parties) and regulation 3F of The Costs in Criminal Cases (General) Regulations 1986[^f00806], for the payment by a person who is not a party of a party’s costs where there has been serious misconduct by the non-party (see rule 76.10);

(g) section 109 of the Magistrates’ Courts Act 1980, section 52 of the Senior Courts Act 1981 and rule 76.6, for the payment by an appellant of a respondent’s costs on abandoning an appeal to the Crown Court (see rule 76.6);

(h) section 52 of the Senior Courts Act 1981 and rule 76.6, for the payment by a party of another party’s costs on an appeal to the Crown Court in any case not covered by (c) or (g) (see rule 76.6);

(i) section 8 of the Bankers Books Evidence Act 1879, for the payment of costs by a party or by the bank against which an application for an order is made (see rule 76.7);

(j) section 2C(8) of the Criminal Procedure (Attendance of Witnesses) Act 1965, for the payment by the applicant for a witness summons of the costs of a party who applies successfully under rule 28.7 to have it withdrawn (see rule 76.7);

(k) section 36(5) of the Criminal Justice Act 1972 or Schedule 3, paragraph 11, of the Criminal Justice Act 1988, for the payment out of central funds of a defendant’s costs on a reference by the Attorney General of—

(i) a point of law, or

(ii) an unduly lenient sentence

(see rule 76.4);

(l) section 159(5) of the Criminal Justice Act 1988, for the payment by a person of another person’s costs on an appeal about a reporting or public access restriction (see rule 76.6);

(m) section 14H(5) of the Football Spectators Act 1989, for the payment by a defendant of another person’s costs on an application to terminate a football banning order (see rule 76.7);

(n) section 4(7) of the Dangerous Dogs Act 1991, for the payment by a defendant of another person’s costs on an application to terminate a disqualification for having custody of a dog (see rule 76.7);

(o) article 14 of The Serious Crime Act 2007 (Appeals under Section 24) Order 2008[^f00807], corresponding with section 16 of the Prosecution of Offences Act 1985 (see rule 76.4);

(p) article 15 of The Serious Crime Act 2007 (Appeals under Section 24) Order 2008, corresponding with section 18 of the Prosecution of Offences Act 1985 (see rule 76.6);

(q) article 16 of The Serious Crime Act 2007 (Appeals under Section 24) Order 2008, corresponding with an order under section 19(1) of the 1985 Act (see rule 76.8);

(r) article 17 of The Serious Crime Act 2007 (Appeals under Section 24) Order 2008, corresponding with an order under section 19A of the 1985 Act (see rule 76.9); or

(s) article 18 of The Serious Crime Act 2007 (Appeals under Section 24) Order 2008, corresponding with an order under section 19B of the 1985 Act (see rule 76.10).

Costs orders: general rules

76.2

(1) The court must not make an order about costs unless each party and any other person directly affected—

(a) is present; or

(b) has had an opportunity—

(i) to attend, or

(ii) to make representations.

(2) The court may make an order about costs—

(a) at a hearing in public or in private; or

(b) without a hearing.

(3) In deciding what order, if any, to make about costs, the court must have regard to all the circumstances, including—

(a) the conduct of all the parties; and

(b) any costs order already made.

(4) If the court makes an order about costs, it must—

(a) specify who must, or must not, pay what, to whom; and

(b) identify the legislation under which the order is made, where there is a choice of powers.

(5) The court must give reasons if it—

(a) refuses an application for a costs order; or

(b) rejects representations opposing a costs order.

(6) If the court makes an order for the payment of costs—

(a) the general rule is that it will be for an amount that is sufficient reasonably to compensate the recipient for costs—

(i) actually, reasonably and properly incurred, and

(ii) reasonable in amount; but

(b) the court may order the payment of—

(i) a proportion of that amount,

(ii) a stated amount less than that amount,

(iii) costs from or until a certain date only,

(iv) costs relating only to particular steps taken, or

(v) costs relating only to a distinct part of the case.

(7) On an assessment of the amount of costs, relevant factors include—

(a) the conduct of all the parties;

(b) the particular complexity of the matter or the difficulty or novelty of the questions raised;

(d) the time spent on the case;

(e) the place where and the circumstances in which work or any part of it was done; and

(f) any direction or observations by the court that made the costs order.

(8) If the court orders a party to pay costs to be assessed under rule 76.11, it may order that party to pay an amount on account.

(9) An order for the payment of costs takes effect when the amount is assessed, unless the court exercises any power it has to order otherwise.

[Note. Under the powers to which apply rule 76.8 (costs resulting from unnecessary or improper act, etc.) and rule 76.9 (costs against a legal representative), specified conduct must be established for such orders to be made.

Court's power to vary requirements under Sections 2, 3 and 4

76.3

(1) The court may—

(a) extend a time limit for serving an application or representations under section 2, 3 or 4 of this Part, even after it has expired; and

(b) consider an application or representations—

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

(ii) made orally instead of in writing.

(2) A person who wants an extension of time must—

(a) apply when serving the application or representations for which it is needed; and

(b) explain the delay.

SECTION 2: COSTS OUT OF CENTRAL FUNDS

Costs out of central funds

76.4

(1) This rule applies where the court can order the payment of costs out of central funds.

(2) In this rule, costs—

(a) include—

(i) on an appeal, costs incurred in the court that made the decision under appeal, and

(ii) at a retrial, costs incurred at the initial trial and on any appeal; but

(b) do not include costs funded by the Legal Services Commission.

(3) The court may make an order—

(a) on application by the person who incurred the costs; or

(b) on its own initiative.

(4) Where a person wants the court to make an order that person must—

(a) apply as soon as practicable; and

(b) outline the type of costs and the amount claimed, if that person wants the court to direct an assessment; or

(5) The general rule is that the court will make an order, but—

(a) the court may decline to make a defendant’s costs order if, for example—

(i) the defendant is convicted of at least one offence, or

(ii) the defendant’s conduct led the prosecutor reasonably to think the prosecution case stronger than it was; and

(b) the court may decline to make a prosecutor’s costs order if, for example, the prosecution was started or continued unreasonably.

(6) If the court makes an order—

(a) it may direct an assessment under, as applicable—

(i) regulations 4 to 12 of The Costs in Criminal Cases (General) Regulations 1986[^f00817], or

(ii) articles 21 to 28 of The Serious Crime Act 2007 (Appeals under Section 24) Order 2008[^f00818];

(b) it may assess the amount itself, if the recipient agrees;

(c) it must assess the amount itself, in a case in which it decides not to allow an amount that is reasonably sufficient to compensate the recipient for expenses properly incurred in the proceedings.

[Note. See also rule 76.2.

SECTION 3: PAYMENT OF COSTS BY ONE PARTY TO ANOTHER

Costs on conviction and sentence

76.5

(1) This rule applies where the court can order a defendant to pay the prosecutor’s costs if the defendant is—

(a) convicted or found guilty;

(b) dealt with in the Crown Court after committal for sentence there; or

(2) The court may make an order—

(a) on application by the prosecutor; or

(b) on its own initiative.

(3) Where the prosecutor wants the court to make an order—

(a) the prosecutor must—

(i) apply as soon as practicable, and

(ii) specify the amount claimed; and

(b) the general rule is that the court will make an order if it is satisfied that the defendant can pay; but

(4) A defendant who wants to oppose an order must make representations as soon as practicable.

(5) If the court makes an order, it must assess the amount itself.

[Note. See—

(a) rule 76.2; and

(b) section 18 of the Prosecution of Offences Act 1985[^f00820]and regulation 14 of The Costs in Criminal Cases (General) Regulations 1986.

Costs on appeal

76.6

(1) This rule—

(a) applies where a magistrates’ court, the Crown Court or the Court of Appeal can order a party to pay another person’s costs on an appeal, or an application for permission to appeal;

(b) authorises the Crown Court, in addition to its other powers, to order a party to pay another party’s costs on an appeal to that court, except on an appeal under—

(i) section 108 of the Magistrates’ Courts Act 1980[^f00821], or

(ii) section 45 of the Mental Health Act 1983[^f00822].

(2) In this rule, costs include—

(a) costs incurred in the court that made the decision under appeal; and

(b) costs funded by the Legal Services Commission.

(3) The court may make an order—

(a) on application by the person who incurred the costs; or

(b) on its own initiative.

(4) A person who wants the court to make an order must—

(a) apply as soon as practicable;

(b) notify each other party;

(i) the amount claimed, and

(ii) against whom; and

(d) where an appellant abandons an appeal to the Crown Court by serving a notice of abandonment—

(i) apply in writing not more than 14 days later, and

(ii) serve the application on the appellant and on the Crown Court officer.

(5) A party who wants to oppose an order must—

(a) make representations as soon as practicable; and

(b) where the application was under paragraph (4)(d), serve written representations on the applicant, and on the Crown Court officer, not more than 7 days after it was served.

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