Legalize / United Kingdom / Statutory-Instrument

The Criminal Procedure Rules 2012

Type Statutory-Instrument

Publication 2012-07-02

State In force

Department King's Printer of Acts of Parliament

Source legislation.gov.uk

PDF Download

articles Not indexed

Reform history JSON API

(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[^f00437]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[^f00445].

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;

(5) If other legislation so permits, at any time while giving evidence a witness may refer to a record of that witness’ recollection of events.

(6) 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[^f00450]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[^f00451].

Evidence of a witness in writing

37.5

(1) This rule applies where a party wants to introduce in evidence the written statement of a witness to which applies—

(a) Part 27 (Witness statements);

(b) Part 33 (Expert evidence); or

(2) If the court admits such evidence—

(a) each relevant part of the statement must be read or summarised aloud; or

(b) the court must read the statement and its gist must be summarised aloud.

[Note. See Parts 27, 33 and 34, and the other legislation to which those Parts apply. 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[^f00459]. 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[^f00460].]

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[^f00461];

(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) If the defendant does not withdraw the notice before the hearing date, then on or after that date—

(a) to establish the facts of the offence and other information about the defendant, the court may take account only of the material and any representations served under this rule (and rule 37.10(3) to (9) inclusive must be read accordingly);

(b) unless the court otherwise directs, the prosecutor need not attend; and

(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[^f00462]. 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 sentencing guidelines, 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[^f00465], and sections 143, 158, 164, 172 and 174 of the Criminal Justice Act 2003[^f00466].

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[^f00477].

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

(b) if practicable, at least one member of the court must be Welsh-speaking.

[Note. See section 3 of the Courts Act 2003[^f00480]and section 22 of the Welsh Language Act 1993[^f00481].

Duty of justices’ legal adviser

37.14

(1) A justices’ legal adviser must attend, unless the court—

(a) includes a District Judge (Magistrates’ Courts); and

(b) otherwise directs.

(2) A justices’ legal adviser must—

(a) give the court legal advice; and

(b) if necessary, attend the members of the court outside the courtroom to give such advice; but

(3) A justices’ legal adviser must—

(a) assist an unrepresented defendant;

(b) assist the court by—

(i) making a note of the substance of any oral evidence or representations, to help the court recall that information,

(ii) if the court rules inadmissible part of a written statement introduced in evidence, marking that statement in such a way as to make that clear,

(iii) ensuring that an adequate record is kept of the court’s decisions and the reasons for them, and

(iv) making any announcement, other than of the verdict or sentence.

(4) Where the defendant has served a notice of guilty plea to which rule 37.8 (written guilty plea: special rules) applies, a justices’ legal adviser must read aloud to the court—

(a) the material on which the prosecutor relies to set out the facts of the offence and to provide information relevant to sentence (or summarise any written statement included in that material, if the court so directs); and

(b) any written representations by the defendant.

[Note. Section 28 of the Courts Act 2003[^f00482]provides for the functions of a justices’ legal adviser. See also section 12 of the Magistrates’ Courts Act 1980[^f00483].]

Duty of court officer

37.15

The court officer must—

(a) serve on each party notice of where and when an adjourned hearing will resume, unless—

(i) the party was present when that was arranged, or

(ii) the defendant has served a notice of guilty plea to which rule 37.8 applies, and the adjournment is for not more than 4 weeks;

(b) if the reason for the adjournment was to postpone sentence, include that reason in any such notice to the defendant;

(d) where the court has ordered a defendant to provide information under section 25 of the Road Traffic Offenders Act 1988[^f00484], serve on the defendant notice of that order unless the defendant was present when it was made;

(e) serve on the prosecutor—

(i) any notice of guilty plea to which rule 37.8 applies, and

(ii) any declaration served under rule 37.11(3)(e) that the defendant did not know about the case;

(f) record in the magistrates’ court register the court’s reasons for not proceeding in the defendant’s absence where rule 37.11(3)(a) applies; and

(g) give the court such other assistance as it requires.

[Note. See sections 10, 11 and 12 of the Magistrates’ Courts Act 1980[^f00485].

PART 38

[Note. There are no rules in this Part.]

PART 39 — TRIAL ON INDICTMENT

Contents of this Part

Time limits for beginning of trials	rule 39.1
Appeal against refusal to excuse from jury service or
to defer attendance	rule 39.2
Application to change a plea of guilty	rule 39.3

Time limits for beginning of trials

39.1

The periods set out for the purposes of section 77(2)(a) and (b) of the Senior Courts Act 1981[^f00486] shall be 14 days and 8 weeks respectively and accordingly, the trial of a person committed by a magistrates’ court—

(a) shall not begin until the expiration of 14 days beginning with the date of his committal, except with his consent and the consent of the prosecution; and

(b) shall, unless the Crown Court has otherwise ordered, begin not later than the expiration of 8 weeks beginning with the date of his committal.

Appeal against refusal to excuse from jury service or to defer attendance

39.2

(1) A person summoned under the Juries Act 1974[^f00487] for jury service may appeal in accordance with the provisions of this rule against any refusal of the appropriate court officer to excuse him under section 9(2), or to defer his attendance under section 9A(1), of that Act.

(2) Subject to paragraph (3), an appeal under this rule shall be heard by the Crown Court.

(3) Where the appellant is summoned under the 1974 Act to attend before the High Court in Greater London the appeal shall be heard by a judge of the High Court and where the appellant is summoned under that Act to attend before the High Court outside Greater London or before a county court and the appeal has not been decided by the Crown Court before the day on which the appellant is required by the summons to attend, the appeal shall be heard by the court before which he is summoned to attend.

(4) An appeal under this rule shall be commenced by the appellant’s giving notice of appeal to the appropriate court officer of the Crown Court or the High Court in Greater London, as the case may be, and such notice shall be in writing and shall specify the matters upon which the appellant relies as providing good reason why he should be excused from attending in pursuance of the summons or why his attendance should be deferred.

(5) The court shall not dismiss an appeal under this rule unless the appellant has been given an opportunity of making representations.

(6) Where an appeal under this rule is decided in the absence of the appellant, the appropriate court officer of the Crown Court or the High Court in Greater London, as the case may be, shall notify him of the decision without delay.

Application to change a plea of guilty

39.3

(1) The defendant must apply as soon as practicable after becoming aware of the grounds for making an application to change a plea of guilty, and may only do so before the final disposal of the case, by sentence or otherwise.

(2) Unless the court otherwise directs, the application must be in writing and it must—

(a) set out the reasons why it would be unjust for the guilty plea to remain unchanged;

(b) indicate what, if any, evidence the defendant wishes to call;

(d) indicate whether legal professional privilege is waived, specifying any material name and date.

(3) The defendant must serve the written application on—

(a) the court officer; and

(b) the prosecutor.

PART 40 — TAINTED ACQUITTALS

Contents of this Part

Time of certification	rule 40.1
Form of certification in the Crown Court	rule 40.2
Service of a copy of the certification	rule 40.3
Entry in register or records in relation to the conviction
which occasioned certification	rule 40.4
Entry in the register or records in relation to the acquittal	rule 40.5
Display of copy certification form	rule 40.6
Entry in the register or records in relation to
decision of High Court	rule 40.7
Display of copy of notice received from High Court	rule 40.8

Time of certification

40.1

Where a person is convicted of an offence as referred to in section 54(1)(b) of the Criminal Procedure and Investigations Act 1996[^f00488] and it appears to the court before which the conviction has taken place that the provisions of section 54(2) are satisfied, the court shall make the certification referred to in section 54(2) at any time following conviction but no later than—

(a) immediately after the court sentences or otherwise deals with that person in respect of the offence; or

(b) where the court, being a magistrates’ court, commits that person to the Crown Court, or remits him to another magistrates’ court, to be dealt with in respect of the offence, immediately after he is so committed or remitted, as the case may be; or

(c) where that person is a child or young person and the court, being the Crown Court, remits him to a youth court to be dealt with in respect of the offence, immediately after he is so remitted.

Form of certification in the Crown Court

40.2

A certification referred to in section 54(2) of the Criminal Procedure and Investigations Act 1996 by the Crown Court shall be drawn up in the form set out in the Practice Direction.

Service of a copy of the certification

40.3

Where a magistrates’ court or the Crown Court makes a certification as referred to in section 54(2) of the Criminal Procedure and Investigations Act 1996, the court officer shall, as soon as practicable after the drawing up of the form, serve a copy on the acquitted person referred to in the certification, on the prosecutor in the proceedings which led to the acquittal, and, where the acquittal has taken place before a court other than, or at a different place to, the court where the certification has been made, on—

(a) the clerk of the magistrates’ court before which the acquittal has taken place; or

(b) the Crown Court officer at the place where the acquittal has taken place.

Entry in register or records in relation to the conviction which occasioned certification

40.4

A clerk of a magistrates’ court or an officer of a Crown Court which has made a certification under section 54(2) of the Criminal Procedure and Investigations Act 1996 shall enter in the register or records, in relation to the conviction which occasioned the certification, a note of the fact that certification has been made, the date of certification, the name of the acquitted person referred to in the certification, a description of the offence of which the acquitted person has been acquitted, the date of the acquittal, and the name of the court before which the acquittal has taken place.

[Note. For the general requirement to make court records, see rule 5.4.]

Entry in the register or records in relation to the acquittal

40.5

The court officer of the court before which an acquittal has taken place shall, as soon as practicable after receipt of a copy of a form recording a certification under section 54(2) of the Criminal Procedure and Investigations Act 1996 relating to the acquittal, enter in the register or records a note that the certification has been made, the date of the certification, the name of the court which has made the certification, the name of the person whose conviction occasioned the making of the certification, and a description of the offence of which that person has been convicted. Where the certification has been made by the same court as the court before which the acquittal has occurred, sitting at the same place, the entry shall be made as soon as practicable after the making of the certification. In the case of an acquittal before a magistrates’ court, the entry in the register shall be signed by the clerk of the court.

[Note. For the general requirement to make court records, see rule 5.4.]

Display of copy certification form

40.6

(1) Where a court makes a certification as referred to in section 54(2) of the Criminal Procedure and Investigations Act 1996, the court officer shall, as soon as practicable after the drawing up of the form, display a copy of that form at a prominent place within court premises to which place the public has access.

(2) Where an acquittal has taken place before a court other than, or at a different place to, the court which has made the certification under section 54(2) of the 1996 Act in relation to the acquittal, the court officer at the court where the acquittal has taken place shall, as soon as practicable after receipt of a copy of the form recording the certification, display a copy of it at a prominent place within court premises to which place the public has access.

(3) The copy of the form referred to in paragraph (1), or the copy referred to in paragraph (2), shall continue to be displayed as referred to, respectively, in those paragraphs at least until the expiry of 28 days from, in the case of paragraph (1), the day on which the certification was made, or, in the case of paragraph (2), the day on which the copy form was received at the court.

Entry in the register or records in relation to decision of High Court

40.7

(1) The court officer at the court where an acquittal has taken place shall, on receipt from the Administrative Court Office of notice of an order made under section 54(3) of the Criminal Procedure and Investigations Act 1996 quashing the acquittal, or of a decision not to make such an order, enter in the register or records, in relation to the acquittal, a note of the fact that the acquittal has been quashed by the said order, or that a decision has been made not to make such an order, as the case may be.

(2) The court officer of the court which has made a certification under section 54(2) of the 1996 Act shall, on receipt from the Administrative Court Office of notice of an order made under section 54(3) of that Act quashing the acquittal referred to in the certification, or of a decision not to make such an order, enter in the register or records, in relation to the conviction which occasioned the certification, a note that the acquittal has been quashed by the said order, or that a decision has been made not to make such an order, as the case may be.

(3) The entries in the register of a magistrates’ court referred to, respectively, in paragraphs (1) and (2) above shall be signed by the magistrates’ court officer.

[Note. For the general requirement to make court records, see rule 5.4. As to the procedure to be followed in the High Court, see RSC Order 116 in Schedule 1 to The Civil Procedure Rules 1998[^f00489].]

Display of copy of notice received from High Court

40.8

(1) Where the court officer of a court which has made a certification under section 54(2) of the Criminal Procedure and Investigations Act 1996 or before which an acquittal has occurred to which such a certification refers, receives from the Administrative Court Office notice of an order quashing the acquittal concerned, or notice of a decision not to make such an order, he shall, as soon as practicable after receiving the notice, display a copy of it at a prominent place within court premises to which place the public has access.

(2) The copy notice referred to in paragraph (1) shall continue to be displayed as referred to in that paragraph at least until the expiry of 28 days from the day on which the notice was received at the court.

[Note. As to the procedure to be followed in the High Court, see RSC Order 116 in Schedule 1 to The Civil Procedure Rules 1998.]

PART 41 — RETRIAL FOLLOWING ACQUITTAL FOR SERIOUS OFFENCE

Contents of this Part

Interpretation	rule 41.1
Notice of a section 76 application	rule 41.2
Response of the acquitted person	rule 41.3
Examination of witnesses or evidence by the Court of Appeal	rule 41.4
Bail or custody hearings in the Crown Court	rule 41.5
Further provisions regarding bail and custody in the Crown Court	rule 41.6
Bail or custody orders in the Court of Appeal	rule 41.7
Application for restrictions on publication	rule 41.8
Variation or revocation of restrictions on publication	rule 41.9
Powers exercisable by a single judge of the Court of Appeal	rule 41.10
Powers exercisable by the Registrar	rule 41.11
Determination by full court	rule 41.12
Notice of the determination of the application	rule 41.13
Notice of application to set aside order for retrial	rule 41.14
Leave to arraign	rule 41.15
Abandonment of the application	rule 41.16

Interpretation

41.1

In this Part, ‘section 76 application’ means an application made by a prosecutor under section 76(1) or (2) of the Criminal Justice Act 2003[^f00490].

Notice of a section 76 application

41.2

(1) A prosecutor who wants to make a section 76 application must serve notice of that application in the form set out in the Practice Direction on the Registrar and the acquitted person.

(2) That notice shall, where practicable, be accompanied by―

(a) relevant witness statements which are relied upon as forming new and compelling evidence of guilt of the acquitted person as well as any relevant witness statements from the original trial;

(b) any unused statements which might reasonably be considered capable of undermining the section 76 application or of assisting an acquitted person’s application to oppose that application under rule 41.3;

(d) copies of the transcript of the summing up and any other relevant transcripts from the original trial; and

(e) any other documents relied upon to support the section 76 application.

(3) The prosecutor must, as soon as practicable after service of that notice on the acquitted person, file with the Registrar a witness statement or certificate of service which exhibits a copy of that notice.

Response of the acquitted person

41.3

(1) An acquitted person who wants to oppose a section 76 application must serve a response in the form set out in the Practice Direction on the Registrar and the prosecutor which―

(a) indicates if he is also seeking an order under section 80(6) of the Criminal Justice Act 2003[^f00491] for―

(i) the production of any document, exhibit or other thing, or

(ii) a witness to attend for examination and to be examined before the Court of Appeal; and

(b) exhibits any relevant documents.

(2) The acquitted person must serve that response not more than 28 days after receiving notice under rule 41.2.

(3) The Court of Appeal may extend the period for service under paragraph (2), either before or after that period expires.

Examination of witnesses or evidence by the Court of Appeal

41.4

(1) Prior to the hearing of a section 76 application, a party may apply to the Court of Appeal for an order under section 80(6) of the Criminal Justice Act 2003 for―

(a) the production of any document, exhibit or other thing; or

(b) a witness to attend for examination and to be examined before the Court of Appeal.

(2) An application under paragraph (1) must be in the form set out in the Practice Direction and must be sent to the Registrar and a copy sent to each party to the section 76 application.

(3) An application must set out the reasons why the order was not sought from the Court when―

(a) the notice was served on the Registrar under rule 41.2, if the application is made by the prosecutor; or

(b) the response was served on the Registrar under rule 41.3, if the application is made by the acquitted person.

(4) An application must be made at least 14 days before the day of the hearing of the section 76 application.

(5) If the Court of Appeal makes an order under section 80(6) of the 2003 Act on its own motion or on application from the prosecutor, it must serve notice and reasons for that order on all parties to the section 76 application.

Bail or custody hearings in the Crown Court

41.5

(1) Part 19 (Bail and custody time limits) shall apply where a person is to appear or be brought before the Crown Court pursuant to section 88 or 89 of the Criminal Justice Act 2003[^f00492] as it applies to other proceedings in the Crown Court but with the modification set out in paragraph (2).

(2) For rule 19.7 substitute:

Where a person is to appear or be brought before the Crown Court pursuant to sections 88 or 89 of the Criminal Justice Act 2003, the prosecutor must serve notice of the need for such a hearing on the court officer.

(3) Where a person is to appear or be brought before the Crown Court pursuant to sections 88 or 89 of the 2003 Act the Crown Court may order that the person shall be released from custody on entering into a recognizance, with or without sureties, or giving other security before―

(a) the Crown Court officer; or

(b) any other person authorised by virtue of section 119(1) of the Magistrates’ Courts Act 1980[^f00493] to take a recognizance where a magistrates’ court having power to take the recognizance has, instead of taking it, fixed the amount in which the principal and his sureties, if any, are to be bound.

(4) The court officer shall forward to the Registrar a copy of any record made in pursuance of section 5(1) of the Bail Act 1976[^f00494].

Further provisions regarding bail and custody in the Crown Court

41.6

(1) The prosecutor may only apply to extend or further extend the relevant period before it expires and that application must be served on the Crown Court officer and the acquitted person.

(2) A prosecutor’s application for a summons or a warrant under section 89(3)(a) or (b) of the Criminal Justice Act 2003 must be served on the court officer and the acquitted person.

Bail or custody orders in the Court of Appeal

41.7

Rules 68.8 and 68.9 shall apply to bail or custody orders made in the Court of Appeal under section 90 of the Criminal Justice Act 2003[^f00495] as if they were orders made pursuant to an application under rule 68.7.

Application for restrictions on publication

41.8

(1) An application by the Director of Public Prosecutions, under section 82 of the Criminal Justice Act 2003[^f00496], for restrictions on publication must be in the form set out in the Practice Direction and be served on the Registrar and the acquitted person.

(2) If notice of a section 76 application has not been given and the Director of Public Prosecution has indicated that there are reasons why the acquitted person should not be notified of the application for restrictions on publication, the Court of Appeal may order that service on the acquitted person is not to be effected until notice of a section 76 application is served on that person.

(3) If the Court of Appeal makes an order for restrictions on publication of its own motion or on application of the Director of Public Prosecutions, the Registrar must serve notice and reasons for that order on all parties, unless paragraph (2) applies.

Variation or revocation of restrictions on publication

41.9

(1) A party who wants to vary or revoke an order for restrictions on publication, under section 82(7) of the Criminal Justice Act 2003[^f00497], may apply to the Court of Appeal in writing at any time after that order was made.

(2) A copy of the application to vary or revoke shall be sent to all parties to the section 76 application unless paragraph (3) applies.

(3) If the application to vary or revoke is made by the Director of Public Prosecutions and―

(a) the notice of a section 76 application has not been given under rule 41.2; and

(b) the Director of Public Prosecutions has indicted that there are reasons why the acquitted person should not be notified of an application for restrictions on publication,

the Court of Appeal may order that service on the acquitted person is not to be effected until notice of a section 76 application is served on that person.

(4) If the Court of Appeal varies or revokes an order for restrictions on publication of its own motion or on application, it must serve notice and reasons for that order on all parties, unless paragraph (3) applies.

Powers exercisable by a single judge of the Court of Appeal

41.10

(1) The following powers under the Criminal Justice Act 2003 and under this Part may be exercised by a single judge in the same manner as they may be exercised by the Court of Appeal and subject to the same provisions, namely to―

(a) order the production of any document, exhibit or thing under section 80(6)(a) of the 2003 Act;

(b) order any witness who would be a compellable witness in proceedings pursuant to an order or declaration made on the application to attend for examination and be examined before the Court of Appeal under section 80(6)(b) of the 2003 Act;

(d) delay the requirement of service on the acquitted person of an application for restrictions on publication under rules 41.8(2) and 41.9(3).

(2) A single judge may, for the purposes of exercising any of the powers specified in paragraph (1), sit in such place as he appoints and may sit otherwise than in open court.

(3) Where a single judge exercises one of the powers set out in paragraph (1), the Registrar must serve notice of the single judge’s decision on all parties to the section 76 application.

Powers exercisable by the Registrar

41.11

(1) The Registrar may require the Crown Court at the place of original trial to provide the Court of Appeal with any assistance or information which it may require for the purposes of exercising its jurisdiction under Part 10 of the Criminal Justice Act 2003[^f00498] or this Part.

(2) The following powers may be exercised by the Registrar in the same manner as the Court of Appeal and subject to the same provisions―

(a) order the production of any document, exhibit or thing under section 80(6)(a) of the 2003 Act;

(b) order any witness who would be a compellable witness in proceedings pursuant to an order or declaration made on the application to attend for examination and be examined before the Court of Appeal under section 80(6)(b) of the 2003 Act; and

(3) Where the Registrar exercises one of the powers set out in paragraph (2) the Registrar must serve notice of that decision on all parties to the section 76 application.

(4) Where the Registrar has refused an application to exercise any of the powers referred to in paragraph (2), the party making the application may have it determined by a single judge by serving a notice of renewal within 14 days of the day on which notice of the Registrar’s decision is served on the party making the application, unless that period is extended by the Court of Appeal.

Determination by full court

41.12

(1) Where a single judge has refused an application to exercise any of the powers referred to in rule 41.10, the applicant may have that application determined by the Court of Appeal by serving a notice of renewal.

(2) A notice under paragraph (1) must be served on the Registrar within 14 days of the day on which notice of the single judge’s decision is served on the party making the application, unless that period is extended by the Court of Appeal.

(3) If a notice under paragraph (1) is not served on the Registrar within the period specified in paragraph (2) or such extended period as the Court of Appeal has allowed, the application shall be treating as having been refused by the Court of Appeal.

Notice of the determination of the application

41.13

(1) The Court of Appeal may give its determination of the section 76 application at the conclusion of the hearing.

(2) If determination is reserved, the Registrar shall as soon as practicable, serve notice of the determination on the parties to the section 76 application.

(3) If the Court of Appeal orders under section 77 of the Criminal Justice Act 2003[^f00499] that a retrial take place, the Registrar must as soon as practicable, serve notice on the Crown Court officer at the appropriate place of retrial.

Notice of application to set aside order for retrial

41.14

(1) If an acquitted person has not been arraigned before the end of 2 months after the date of an order under section 77 of the Criminal Justice Act 2003 he may apply in the form set out in the Practice Direction to the Court of Appeal to set aside the order.

(2) An application under paragraph (1) must be served on the Registrar and the prosecutor.

Leave to arraign

41.15

(1) If the acquitted person has not been arraigned before the end of 2 months after the date of an order under section 77 of the Criminal Justice Act 2003, the prosecutor may apply in the form set out in the Practice Direction to the Court of Appeal for leave to arraign.

(2) An application under paragraph (1) must be served on the Registrar and the acquitted person.

Abandonment of the application

41.16

(1) A section 76 application may be abandoned by the prosecutor before the hearing of that application by serving a notice in the form set out in the Practice Direction on the Registrar and the acquitted person.

(2) The Registrar must, as soon as practicable, after receiving a notice under paragraph (1) send a copy of it endorsed with the date of receipt to the prosecutor and acquitted person.

PART 42 — SENTENCING PROCEDURES IN SPECIAL CASES

Contents of this Part

Reasons for deciding not to follow a guideline or make an order	rule 42.1
Notice of requirements of suspended sentence and community, etc. orders	rule 42.2
Notification requirements	rule 42.3
Variation of sentence	rule 42.4
Application to vary or discharge a compensation order	rule 42.5
Application to remove, revoke or suspend a disqualification or restriction	rule 42.6
Application for a restitution order by the victim of a theft	rule 42.7
Requests for medical reports, etc.	rule 42.8
Information to be supplied on admission to hospital or guardianship	rule 42.9
Information to be supplied on committal for sentence, etc.	rule 42.10

[Note. See also—

(a) Part 37, which contains rules about the general procedure on sentencing in a magistrates’ court;

(b) Part 44 (Breach, revocation and amendment of community and other orders);

(d) Part 55 (Road traffic penalties).]

Reasons for deciding not to follow a guideline or make an order

42.1

(1) This rule applies where the court decides—

(a) not to follow a relevant sentencing guideline;

(b) not to make, where it could—

(i) a reparation order (unless it passes a custodial or community sentence),

(ii) a compensation order, or

(iii) a travel restriction order;

(i) that a suspended sentence of imprisonment is to take effect,

(ii) the endorsement of the defendant’s driving record, or

(iii) the defendant’s disqualification from driving, for the usual minimum period or at all.

(2) The court must explain why it has not done so, when it explains the sentence that it has passed.

[Note. See section 174 of the Criminal Justice Act 2003[^f00500]; section 73(8) of the Powers of Criminal Courts (Sentencing) Act 2000[^f00501]; section 130(3) of the 2000 Act[^f00502]; section 33(2) of the Criminal Justice and Police Act 2001[^f00503]; paragraph 8(3) of Schedule 12 to the 2003 Act[^f00504]; and section 47(1) of the Road Traffic Offenders Act 1988[^f00505].

Notice of requirements of suspended sentence and community, etc. orders

42.2

(1) This rule applies where the court—

(a) makes a suspended sentence order;

(b) imposes a requirement under—

(i) a community order,

(ii) a youth rehabilitation order, or

(iii) a suspended sentence order; or

(2) The court officer must notify—

(a) the defendant of—

(i) the length of the sentence suspended by a suspended sentence order, and

(ii) the period of the suspension;

(b) the defendant and, where the defendant is under 14, an appropriate adult, of—

(i) any requirement or requirements imposed, and

(ii) the identity of any responsible officer or supervisor, and the means by which that person may be contacted;

(c) any responsible officer or supervisor, and, where the defendant is under 14, the appropriate qualifying officer (if that is not the responsible officer), of—

(i) the defendant’s name, address and telephone number (if available),

(ii) the offence or offences of which the defendant was convicted, and

(iii) the requirement or requirements imposed; and

(d) the person affected, where the court imposes a requirement—

(i) for the protection of that person from the defendant, or

(ii) requiring the defendant to reside with that person.

(3) If the court imposes an electronic monitoring requirement, the monitor of which is not the responsible officer, the court officer must—

(a) notify the defendant and, where the defendant is under 16, an appropriate adult, of the monitor’s identity, and the means by which the monitor may be contacted; and

(b) notify the monitor of—

(i) the defendant’s name, address and telephone number (if available),

(ii) the offence or offences of which the defendant was convicted,

(iii) the place or places at which the defendant’s presence must be monitored,

(iv) the period or periods during which the defendant’s presence there must be monitored, and

(v) the identity of the responsible officer, and the means by which that officer may be contacted.

[Note. See section 219(1) of the Criminal Justice Act 2003[^f00510]; paragraph 34(1) of Schedule 1 to the Criminal Justice and Immigration Act 2008[^f00511]; and section 1A(7) of the Street Offences Act 1959[^f00512].

Notification requirements

42.3

(1) This rule applies where, on a conviction, sentence or order, legislation requires the defendant—

(a) to notify information to the police; or

(b) to be included in a barred list.

(2) The court must tell the defendant that such requirements apply, and under what legislation.

[Note. For the circumstances in which a defendant is required to notify information to the police, see—

(a) Part 2 of, and Schedule 3 to, the Sexual Offences Act 2003[^f00519](notification after conviction of a specified sexual offence for which a specified sentence is imposed);

(b) Part 4 of the Counter Terrorism Act 2008[^f00520](notification after conviction of a specified offence of, or connected with, terrorism, for which a specified sentence is imposed).

Variation of sentence

42.4

(1) This rule—

(a) applies where a magistrates’ court or the Crown Court can vary or rescind a sentence or order; and

(b) authorises the Crown Court, in addition to its other powers, to do so within the period of 56 days beginning with another defendant’s acquittal or sentencing where—

(i) defendants are tried separately in the Crown Court on the same or related facts alleged in one or more indictments, and

(ii) one is sentenced before another is acquitted or sentenced.

(2) The court may exercise its power—

(a) on application by a party; or

(b) on its own initiative.

(3) A party who wants the court to exercise that power must—

(a) apply in writing as soon as reasonably practicable after—

(i) the sentence or order that that party wants the court to vary or rescind, or

(ii) where paragraph (1)(b) applies, the other defendant’s acquittal or sentencing;

(b) serve the application on—

(i) the court officer, and

(ii) each other party; and

(i) explain why the sentence should be varied or rescinded,

(ii) specify the variation that the applicant proposes, and

(iii) if the application is late, explain why.

(4) The court must not exercise its power in the defendant’s absence unless—

(a) the court makes a variation proposed by the defendant; or

(b) the defendant has had an opportunity to make representations at a hearing (whether or not the defendant in fact attends).

(5) The court may—

(a) extend (even after it has expired) the time limit under paragraph (3), unless the court’s power to vary or rescind the sentence cannot be exercised; and

(b) allow an application to be made orally.

[Note. Under section 142 of the Magistrates’ Courts Act 1980[^f00523], in some cases a magistrates’ court can vary or rescind a sentence or other order that it has imposed or made, if that appears to be in the interests of justice. The power cannot be exercised if the Crown Court or the High Court has determined an appeal about that sentence or order.

Application to vary or discharge a compensation order

42.5

(1) This rule applies where a magistrates’ court can vary or discharge a compensation order on application by the defendant.

(2) A defendant who wants the court to exercise that power must—

(a) apply in writing as soon as practicable after becoming aware of the grounds for doing so;

(b) serve the application on the magistrates’ court officer;

(c) where the compensation order was made in the Crown Court, serve a copy of the application on the Crown Court officer; and

(d) in the application, specify the compensation order that the defendant wants the court to vary or discharge and explain (as applicable)—

(i) what civil court finding shows that the injury, loss or damage was less than it had appeared to be when the order was made,

(ii) in what circumstances the person for whose benefit the order was made has recovered the property for the loss of which it was made,

(iii) why a confiscation order makes the defendant now unable to pay compensation in full, or

(iv) in what circumstances the defendant’s means have been reduced substantially and unexpectedly, and why they seem unlikely to increase for a considerable period.

(3) The court officer must serve a copy of the application on the person for whose benefit the compensation order was made.

(4) The court must not vary or discharge the compensation order unless—

(a) the defendant, and the person for whose benefit it was made, each has had an opportunity to make representations at a hearing (whether or not either in fact attends); and

(b) where the order was made in the Crown Court, the Crown Court has notified its consent.

[Note. For the circumstances in which—

(a) the court may make a compensation order, see section 130 of the Powers of Criminal Courts (Sentencing) Act 2000[^f00525];

(b) a magistrates’ court with power to enforce such an order may vary or discharge it under the 2000 Act, see section 133[^f00526]. (Under section 133(4), where the order was made in the Crown Court, the magistrates’ court must first obtain the Crown Court’s consent.)]

Application to remove, revoke or suspend a disqualification or restriction

42.6

(1) This rule applies where, on application by the defendant, the court can remove, revoke or suspend a disqualification or restriction included in a sentence (except a disqualification from driving).

(2) A defendant who wants the court to exercise such a power must—

(a) apply in writing, no earlier than the date on which the court can exercise the power;

(b) serve the application on the court officer; and

(i) specify the disqualification or restriction, and

(ii) explain why the defendant wants the court to remove, revoke or suspend it.

(3) The court officer must serve a copy of the application on the chief officer of police for the local justice area.

[Note. Part 55 contains rules about disqualification from driving. See in particular rule 55.1.

Application for a restitution order by the victim of a theft

42.7

(1) This rule applies where, on application by the victim of a theft, the court can order a defendant to give that person goods obtained with the proceeds of goods stolen in that theft.

(2) A person who wants the court to exercise that power if the defendant is convicted must—

(a) apply in writing as soon as practicable (without waiting for the verdict);

(b) serve the application on the court officer; and

(i) identify the goods, and

(ii) explain why the applicant is entitled to them.

(3) The court officer must serve a copy of the application on each party.

(4) The court must not determine the application unless the applicant and each party has had an opportunity to make representations at a hearing (whether or not each in fact attends).

(5) The court may —

(a) extend (even after it has expired) the time limit under paragraph (2); and

(b) allow an application to be made orally.

[Note. For the circumstances in which the court may order—

(a) the return of stolen goods, see section 148 of the Powers of Criminal Courts (Sentencing) Act 2000[^f00529];

(b) the defendant to give the victim of the theft goods that are not themselves the stolen goods but which represent their proceeds, see section 148(2)(b) of the 2000 Act.]

Requests for medical reports, etc.

42.8

(1) This rule applies where the court—

(a) requests a medical examination of the defendant and a report; or

(b) requires information about the arrangements that could be made for the defendant where the court is considering—

(i) a hospital order, or

(ii) a guardianship order.

(2) Unless the court otherwise directs, the court officer must, as soon as practicable, serve on each person from whom a report or information is sought a note that—

(a) specifies the power exercised by the court;

(b) explains why the court seeks a report or information from that person; and

[Note. The court may request a medical examination of the defendant and a report in connection with—

(a) section 4 of the Criminal Procedure (Insanity) Act 1964[^f00530], under which the Crown Court may determine a defendant’s fitness to plead;

(b) section 35 of the Mental Health Act 1983[^f00531], under which the court may order the defendant’s detention in hospital to obtain a further medical report;

(c) section 36 of the 1983 Act[^f00532], under which the Crown Court may order the defendant’s detention in hospital instead of in custody pending trial;

(d) section 37 of the 1983 Act[^f00533], under which the court may order the defendant’s detention and treatment in hospital, or make a guardianship order, instead of disposing of the case in another way;

(e) section 38 of the 1983 Act[^f00534], under which the court may order the defendant’s temporary detention and treatment in hospital instead of disposing of the case in another way;

(f) section 157 of the Criminal Justice Act 2003[^f00535], under which the court must usually obtain and consider a medical report before passing a custodial sentence if the defendant is, or appears to be, mentally disordered;

(g) section 207 of the 2003 Act[^f00536](in the case of a defendant aged 18 or over), or section 1(1)(k) of the Criminal Justice and Immigration Act 2008[^f00537](in the case of a defendant who is under 18), under which the court may impose a mental health treatment requirement.

Information to be supplied on admission to hospital or guardianship

42.9

(1) This rule applies where the court—

(a) orders the defendant’s detention and treatment in hospital; or

(b) makes a guardianship order.

(2) Unless the court otherwise directs, the court officer must, as soon as practicable, serve on (as applicable) the hospital or the guardian—

(a) a record of the court’s order;

(b) such information as the court has received that appears likely to assist in treating or otherwise dealing with the defendant, including information about—

(i) the defendant’s mental condition,

(ii) the defendant’s other circumstances, and

(iii) the circumstances of the offence.

[Note. For the circumstances in which the court may order the defendant’s detention and treatment in hospital, see sections 35, 36, 37, 38 and 44 of the Mental Health Act 1983[^f00540]. For the circumstances in which the court may make a guardianship order, see the same section 37.]

Information to be supplied on committal for sentence, etc.

42.10

(1) This rule applies where a magistrates’ court or the Crown Court convicts the defendant and—

(a) commits or adjourns the case to another court—

(i) for sentence, or

(ii) for the defendant to be dealt with for breach of a deferred sentence, a conditional discharge, or a suspended sentence of imprisonment, imposed by that other court;

(b) deals with a deferred sentence, a conditional discharge, or a suspended sentence of imprisonment, imposed by another court; or

(2) Unless the convicting court otherwise directs, the court officer must, as soon as practicable—

(a) where paragraph (1)(a) applies, arrange the transmission from the convicting to the other court of relevant copy court records and other relevant documents, including any—

(i) certificate of conviction,

(ii) magistrates’ court register entry,

(iii) record relating to bail,

(iv) note of evidence,

(v) statement or other document introduced in evidence,

(vi) medical or other report,

(vii) representation order or application for such order, and

(viii) interim driving disqualification;

(b) where paragraph (1)(b) or (c) applies, arrange—

(i) the transmission from the convicting to the other court of notice of the convicting court’s order, and

(ii) the recording of that order at the other court;

(c) in every case, notify the defendant and, where the defendant is under 14, an appropriate adult, of the location of the other court.

[Note. For the circumstances in which—

(a) a magistrates’ court may (and in some cases must) commit the defendant to the Crown Court for sentence, see sections 3, 3A, 3B, 3C, 4, 4A and 6 of the Powers of Criminal Courts (Sentencing) Act 2000[^f00541]and section 43 of the Mental Health Act 1983[^f00542];

(b) a magistrates’ court may adjourn the case to another magistrates’ court for sentence, see section 10 of the Magistrates’ Courts Act 1980[^f00543]and section 10 of the 2000 Act[^f00544];

(c) a magistrates’ court or the Crown Court may (and in some cases must) adjourn the case to a youth court for sentence, see section 8 of the 2000 Act [^f00545];

(d) a youth court may adjourn the case to a magistrates’ court for sentence, see section 9 of the 2000 Act [^f00546];

(e) a magistrates’ court may transfer a fine to be enforced to another court, see sections 89 and 90 of the 1980 Act [^f00547].

PART 43

[Note. There are no rules in this Part.]

PART 44 — BREACH, REVOCATION AND AMENDMENT OF COMMUNITY AND OTHER ORDERS

Contents of this Part

When this Part applies	rule 44.1
Application by responsible officer or supervisor	rule 44.2
Application by defendant or person affected	rule 44.3
Procedure on application by responsible officer or supervisor	rule 44.4

When this Part applies

44.1

This Part applies where—

(a) the person responsible for a defendant’s compliance with an order to which applies—

(i) Schedule 3, 5, 7 or 8 to the Powers of Criminal Courts (Sentencing) Act 2000[^f00554],

(ii) Schedule 8 or 12 to the Criminal Justice Act 2003[^f00555],

(iii) Schedule 2 to the Criminal Justice and Immigration Act 2008[^f00556], or

(iv) the Schedule to the Street Offences Act 1959[^f00557]

wants the court to deal with that defendant for failure to comply;

(b) one of the following wants the court to exercise any power it has to revoke or amend such an order—

(i) the responsible officer or supervisor,

(ii) the defendant, or

(iii) where the legislation allows, a person affected by the order; or

[Note. In the Powers of Criminal Courts (Sentencing) Act 2000—

(a) Schedule 3 deals with the breach, revocation and amendment of curfew orders and exclusion orders;

(b) Schedule 5 deals with the breach, revocation and amendment of attendance centre orders;

(d) Schedule 8 deals with the breach, revocation and amendment of action plan orders and reparation orders; and

(e) Schedules 3, 5 and 7 are repealed, with savings for existing orders, by the relevant provisions of the Criminal Justice and Immigration Act 2008; and, with savings for existing orders, Schedule 8 no longer refers to action plan orders.

Application by responsible officer or supervisor

44.2

(1) This rule applies where—

(a) the responsible officer or supervisor wants the court to—

(i) deal with a defendant for failure to comply with an order to which this Part applies, or

(ii) revoke or amend such an order; or

(b) the court considers exercising on its own initiative any power it has to—

(i) revoke or amend such an order, and

(ii) summon the defendant to attend for that purpose.

(2) Rules 7.2 to 7.4, which deal, among other things, with starting a prosecution in a magistrates’ court by information and summons, apply—

(a) as if—

(i) a reference in those rules to an allegation of an offence included a reference to an allegation of failure to comply with an order to which this Part applies, and

(ii) a reference to the prosecutor included a reference to the responsible officer or supervisor; and

(b) with the necessary consequential modifications.

Application by defendant or person affected

44.3

(1) This rule applies where—

(a) the defendant wants the court to exercise any power it has to revoke or amend an order to which this Part applies; or

(b) where the legislation allows, a person affected by such an order wants the court to exercise any such power.

(2) That defendant, or person affected, must—

(a) apply in writing, explaining why the order should be revoked or amended; and

(b) serve the application on—

(i) the court officer,

(ii) the responsible officer or supervisor, and

(iii) as appropriate, the defendant or the person affected.

Procedure on application by responsible officer or supervisor

44.4

(1) Except for rule 37.8, the rules in Part 37, which deal with the procedure at a trial in a magistrates’ court, apply—

(a) as if—

(i) a reference in those rules to an allegation of an offence included a reference to an allegation of failure to comply with an order to which this Part applies,

(ii) a reference to the court’s verdict included a reference to the court’s decision to revoke or amend such an order, or to exercise any other power it has to deal with the defendant, and

(iii) a reference to the court’s sentence included a reference to the exercise of any such power; and

(b) with the necessary consequential modifications.

(2) The court officer must serve on each party any order revoking or amending an order to which this Part applies.

PART 45

[Note. There are no rules in this Part.]

PART 46

[Note. There are no rules in this Part.]

PART 47

[Note. There are no rules in this Part.]

PART 48

[Note. There are no rules in this Part.]

PART 49

[Note. There are no rules in this Part.]

PART 50 — CIVIL BEHAVIOUR ORDERS AFTER VERDICT OR FINDING

Contents of this Part

When this Part applies	rule 50.1
Behaviour orders: general rules	rule 50.2
Application for behaviour order: special rules	rule 50.3
Evidence to assist the court: special rules	rule 50.4
Application to vary or revoke behaviour order	rule 50.5
Notice of hearsay evidence	rule 50.6
Cross-examination of maker of hearsay statement	rule 50.7
Credibility and consistency of maker of hearsay statement	rule 50.8
Court’s power to vary requirements under this Part	rule 50.9

[Note. See Part 3 for the court’s general powers to consider an application and to give directions.]

When this Part applies

50.1

(1) This Part applies in magistrates’ courts and in the Crown Court where the court could decide to make, vary or revoke a civil order—

(a) under a power that the court can exercise after reaching a verdict or making a finding, and

(b) that requires someone to do, or not do, something.

(2) A reference to a ‘behaviour order’ in this Part is a reference to any such order.

(3) A reference to ‘hearsay evidence’ in this Part is a reference to evidence consisting of hearsay within the meaning of section 1(2) of the Civil Evidence Act 1995[^f00558].

[Note. In the circumstances set out in the Acts listed, the court can make a behaviour order:

(a) on conviction, under—

(i) section 14A of the Football Spectators Act 1989[^f00559](football banning orders),

(ii) section 5 of the Protection from Harassment Act 1997[^f00560](restraining orders),

(iii) sections 1C and 1D of the Crime and Disorder Act 1998[^f00561](anti-social behaviour orders and interim anti-social behaviour orders),

(iv) sections 8 and 9 of the Crime and Disorder Act 1998[^f00562](parenting orders),

(v) section 104 of the Sexual Offences Act 2003[^f00563](sexual offences prevention orders),

(vi) section 19 of the Serious Crime Act 2007[^f00564](serious crime prevention orders),

(vii) section 6 of the Violent Crime Reduction Act 2006[^f00565](drinking banning orders);

(b) on acquittal, under section 5A of the Protection from Harassment Act 1997[^f00566](restraining orders on acquittal); and

(c) on the making of a finding of (i) not guilty by reason of insanity, or (ii) disability, under section 104 of the Sexual Offences Act 2003 (sexual offences prevention orders).

Behaviour orders: general rules

50.2

(1) The court must not make a behaviour order unless the person to whom it is directed has had an opportunity—

(a) to consider—

(i) what order is proposed and why, and

(ii) the evidence in support; and

(b) to make representations at a hearing (whether or not that person in fact attends).

(2) That restriction does not apply to making an interim behaviour order, but such an order has no effect unless the person to whom it is directed—

(a) is present when it is made; or

(b) is handed a document recording the order not more than 7 days after it is made.

(3) Where the court decides not to make, where it could—

(a) a football banning order;

(b) a parenting order, after a person under 16 is convicted of an offence; or

the court must announce, at a hearing in public, the reasons for its decision.

[Note. The Acts listed in the note to rule 50.1 impose requirements specific to each different type of behaviour order. Not all allow the court to make an interim behaviour order.

Application for behaviour order: special rules

50.3

(1) This rule applies where a prosecutor wants the court to make—

(a) an anti-social behaviour order; or

(b) a serious crime prevention order,

if the defendant is convicted.

(2) The prosecutor must serve a notice of intention to apply for such an order on—

(a) the court officer;

(b) the defendant against whom the prosecutor wants the court to make the order; and

as soon as practicable (without waiting for the verdict).

(3) The notice must be in the form set out in the Practice Direction and must—

(a) summarise the relevant facts;

(b) identify the evidence on which the prosecutor relies in support;

(d) specify the order that the prosecutor wants the court to make.

(4) The defendant must then—

(a) serve written notice of any evidence on which the defendant relies on—

(i) the court officer, and

(ii) the prosecutor,

as soon as practicable (without waiting for the verdict); and

(b) in the notice, identify that evidence and attach any written statement that has not already been served.

(5) This rule does not apply to an application for an interim anti-social behaviour order.

[Note. Under section 8 of the Serious Crime Act 2007 a serious crime prevention order may be made only on an application by the Director of Public Prosecutions, the Director of Revenue and Customs Prosecutions, or the Director of the Serious Fraud Office. See also paragraphs 2, 7 and 13 of Schedule 2 to the 2007 Act.

Evidence to assist the court: special rules

50.4

(1) This rule applies where the court can make on its own initiative—

(a) a football banning order;

(b) a restraining order;

(d) a drinking banning order.

(2) A party who wants the court to take account of evidence not already introduced must—

(a) serve notice in writing on—

(i) the court officer, and

(ii) every other party,

as soon as practicable (without waiting for the verdict); and

(b) in the notice, identify that evidence; and

[Note. If a party relies on hearsay evidence, see also rules 50.6, 50.7, and 50.8.]

Application to vary or revoke behaviour order

50.5

(1) The court may vary or revoke a behaviour order if—

(a) the legislation under which it is made allows the court to do so; and

(b) one of the following applies—

(i) the prosecutor,

(ii) the person to whom the order is directed,

(iii) any other person mentioned in the order,

(iv) the relevant authority or responsible officer,

(v) the relevant Chief Officer of Police, or

(vi) the Director of Public Prosecutions.

(2) A person applying under this rule must—

(a) apply in writing as soon as practicable after becoming aware of the grounds for doing so, explaining—

(i) what material circumstances have changed since the order was made, and

(ii) why the order should be varied or revoked as a result; and

(b) serve the application on—

(i) the court officer,

(ii) as appropriate, the prosecutor or defendant, and

(iii) any other person listed in paragraph (1)(b), if the court so directs.

(3) A party who wants the court to take account of any particular evidence before making its decision must, as soon as practicable—

(a) serve notice in writing on—

(i) the court officer,

(ii) as appropriate, the prosecutor or defendant, and

(iii) any other person listed in paragraph (1)(b) on whom the court directed the application to be served; and

(b) in that notice identify the evidence and attach any written statement that has not already been served.

(4) The court may decide an application under this rule with or without a hearing.

(5) But the court must not—

(a) dismiss an application under this rule unless the applicant has had an opportunity to make representations at a hearing (whether or not the applicant in fact attends); or

(b) allow an application under this rule unless everyone required to be served, by this rule or by the court, has had at least 14 days in which to make representations, including representations about whether there should be a hearing.

(6) The court officer must—

(a) serve the application on any person, if the court so directs; and

(b) give notice of any hearing to—

(i) the applicant, and

(ii) any person required to be served, by this rule or by the court.

[Note. The legislation that gives the court power to make a behaviour order may limit the circumstances in which it may be varied or revoked and may require a hearing.

Notice of hearsay evidence

50.6

(1) A party who wants to introduce hearsay evidence must—

(a) serve a notice in writing on—

(i) the court officer, and

(ii) every other party directly affected; and

(b) in that notice—

(i) explain that it is a notice of hearsay evidence,

(ii) identify that evidence,

(iii) identify the person who made the statement which is hearsay, or explain why if that person is not identified, and

(iv) explain why that person will not be called to give oral evidence.

(2) A party may serve one notice under this rule in respect of more than one notice and more than one witness.

[Note. For the time within which to serve a notice of hearsay evidence, see rule 50.3(2) to (4), rule 50.4(2) and rule 50.5(3). See also the requirement in section 2 of the Civil Evidence Act 1995 for reasonable and practicable notice of a proposal to introduce hearsay evidence.

Cross-examination of maker of hearsay statement

50.7

(1) This rule applies where a party wants the court’s permission to cross-examine a person who made a statement which another party wants to introduce as hearsay.

(2) The party who wants to cross-examine that person must—

(a) apply in writing, with reasons, not more than 7 days after service of the notice of hearsay evidence; and

(b) serve the application on—

(i) the court officer,

(ii) the party who served the hearsay evidence notice, and

(iii) every party on whom the hearsay evidence notice was served.

(3) The court may decide an application under this rule with or without a hearing.

(4) But the court must not—

(a) dismiss an application under this rule unless the applicant has had an opportunity to make representations at a hearing (whether or not the applicant in fact attends); or

(b) allow an application under this rule unless everyone served with the application has had at least 7 days in which to make representations, including representations about whether there should be a hearing.

[Note. See also section 3 of the Civil Evidence Act 1995.]

Credibility and consistency of maker of hearsay statement

50.8

Reading this document does not replace reading the official text published on legislation.gov.uk. Contains public sector information licensed under the Open Government Licence v3.0. We assume no responsibility for any inaccuracies arising from the conversion of the original CLML XML to this format.

This text is published under legislation.gov.uk's own terms of reuse, not a Legalize or public-domain licence. legislation.gov.uk
Open Government Licence v3.0 (attribution required)
© Crown and database right. Derived from content available under the Open Government Licence v3.0 from legislation.gov.uk.