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The Criminal Procedure Rules 2013

Type Statutory-Instrument

Publication 2013-06-19

State In force

Department King's Printer of Acts of Parliament

Source legislation.gov.uk

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(1) This rule applies where a defendant wants the court’s permission to use disclosed prosecution material—

(a) otherwise than in connection with the case in which it was disclosed; or

(b) beyond the extent to which it was displayed or communicated publicly at a hearing.

(2) The defendant must serve an application on—

(a) the court officer; and

(b) the prosecutor.

(3) The application must—

(a) specify what the defendant wants to use or disclose; and

(b) explain why.

(4) The court may determine an application under this rule—

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

(b) without a hearing.

(5) The court must not permit the use of such material unless—

(a) the prosecutor has had at least 28 days in which to make representations; and

(b) the court is satisfied that it has been able to take adequate account of any rights of confidentiality that may apply to the material.

[Note. The court’s power to allow a defendant to use disclosed material is provided for by section 17 of the Criminal Procedure and Investigations Act 1996[^f00341].

Unauthorised use of disclosed material

22.8

(1) This rule applies where a person is accused of using disclosed prosecution material in contravention of section 17 of the Criminal Procedure and Investigations Act 1996.

(2) A party who wants the court to exercise its power to punish that person for contempt of court must comply with the rules in Part 62 (Contempt of court).

(3) The court must not exercise its power to forfeit material used in contempt of court unless—

(a) the prosecutor; and

(b) any other person directly affected by the disclosure of the material,

is present, or has had at least 14 days in which to make representations.

[Note. Under section 17 of the Criminal Procedure and Investigations Act 1996, a defendant may use disclosed prosecution material—

(a) in connection with the case in which it was disclosed, including on an appeal;

(b) to the extent to which it was displayed or communicated publicly at a hearing in public; or

Court’s power to vary requirements under this Part

22.9

The court may—

(a) shorten or extend (even after it has expired) a time limit under this Part;

(b) allow a defence statement, or a defence witness notice, to be in a different written form to one set out in the Practice Direction, as long as it contains what the Criminal Procedure and Investigations Act 1996 requires;

(c) allow an application under this Part to be in a different form to one set out in the Practice Direction, or to be presented orally; and

(d) specify the period within which—

(i) any application under this Part must be made, or

(ii) any material must be disclosed, on an application to which rule 22.5 applies (defendant’s application for prosecution disclosure).

PART 23

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

PART 24

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

PART 25

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

PART 26

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

PART 27 — WITNESS STATEMENTS

Contents of this Part

When this Part applies	rule 27.1
Content of written statement	rule 27.2
Reference to exhibit	rule 27.3
Written statement in evidence	rule 27.4

When this Part applies

27.1

This Part applies where a party wants to introduce a written statement in evidence under section 9 of the Criminal Justice Act 1967[^f00353].

[Note. Under section 9 of the Criminal Justice Act 1967, if the conditions specified in that section are met, the written statement of a witness is admissible in evidence to the same extent as if that witness gave evidence in person.]

Content of written statement

27.2

The statement must contain—

(a) at the beginning—

(i) the witness’ name, and

(ii) the witness’ age, if under 18;

(b) a declaration by the witness that—

(i) it is true to the best of the witness’ knowledge and belief, and

(ii) the witness knows that if it is introduced in evidence, then it would be an offence wilfully to have stated in it anything that the witness knew to be false or did not believe to be true;

(c) if the witness cannot read the statement, a signed declaration by someone else that that person read it to the witness; and

(d) the witness’ signature.

[Note. The Practice Direction sets out a form of written statement for use in connection with this rule.]

Reference to exhibit

27.3

Where the statement refers to a document or object as an exhibit—

(a) the statement must contain such a description of that exhibit as to identify it clearly; and

(b) the exhibit must be labelled or marked correspondingly, and the label or mark signed by the maker of the statement.

Written statement in evidence

27.4

(1) A party who wants to introduce in evidence a written statement must—

(a) before the hearing at which that party wants to introduce it, serve a copy of the statement on—

(i) the court officer, and

(ii) each other party; and

(b) at or before that hearing, serve on the court officer the statement or an authenticated copy.

(2) If that party relies on only part of the statement, that party must mark the copy in such a way as to make that clear.

(3) A prosecutor must serve on a defendant, with the copy of the statement, a notice—

(a) of the right within 7 days of service to object to the introduction of the statement in evidence instead of the witness giving evidence in person; and

(b) that if the defendant does not object in time, the court—

(i) can nonetheless require the witness to give evidence in person, but

(ii) may decide not to do so.

(4) The court may exercise its power to require the witness to give evidence in person—

(a) on application by any party; or

(b) on its own initiative.

(5) A party entitled to receive a copy of a statement may waive that entitlement by so informing—

(a) the party who would have served it; and

(b) the court.

[Note. The Practice Direction sets out a form of notice for use in connection with this rule.

PART 28 — WITNESS SUMMONSES, WARRANTS AND ORDERS

Contents of this Part

When this Part applies	rule 28.1
Issue etc. of summons, warrant or order with or without a hearing	rule 28.2
Application for summons, warrant or order: general rules	rule 28.3
Written application: form and service	rule 28.4
Application for summons to produce a document, etc.:
special rules	rule 28.5
Application for summons to produce a document, etc.:
court’s assessment of relevance and confidentiality	rule 28.6
Application to withdraw a summons, warrant or order	rule 28.7
Court’s power to vary requirements under this Part	rule 28.8

[Note. A magistrates’ court may require the attendance of a witness to give evidence or to produce in evidence a document or thing by a summons, or in some circumstances a warrant for the witness’ arrest, under section 97 of the Magistrates’ Courts Act 1980[^f00355]. The Crown Court may do so under sections 2, 2D, 3 and 4 of the Criminal Procedure (Attendance of Witnesses) Act 1965[^f00356]. Either court may order the production in evidence of a copy of an entry in a banker’s book without the attendance of an officer of the bank, under sections 6 and 7 of the Bankers’ Books Evidence Act 1879[^f00357].

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

When this Part applies

28.1

(1) This Part applies in magistrates’ courts and in the Crown Court where—

(a) a party wants the court to issue a witness summons, warrant or order under—

(i) section 97 of the Magistrates’ Courts Act 1980,

(ii) section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965, or

(iii) section 7 of the Bankers’ Books Evidence Act 1879;

(b) the court considers the issue of such a summons, warrant or order on its own initiative as if a party had applied; or

(2) A reference to a ‘witness’ in this Part is a reference to a person to whom such a summons, warrant or order is directed.

[Note. See section 2D of the Criminal Procedure (Attendance of Witnesses) Act 1965 for the Crown Court’s power to issue a witness summons on the court’s own initiative.]

Issue etc. of summons, warrant or order with or without a hearing

28.2

(1) The court may issue or withdraw a witness summons, warrant or order with or without a hearing.

(2) A hearing under this Part must be in private unless the court otherwise directs.

[Note. If rule 28.5 applies, a person served with an application for a witness summons will have an opportunity to make representations about whether there should be a hearing of that application before the witness summons is issued.]

Application for summons, warrant or order: general rules

28.3

(1) A party who wants the court to issue a witness summons, warrant or order must apply as soon as practicable after becoming aware of the grounds for doing so.

(2) The party applying must—

(a) identify the proposed witness;

(b) explain—

(i) what evidence the proposed witness can give or produce,

(ii) why it is likely to be material evidence, and

(iii) why it would be in the interests of justice to issue a summons, order or warrant as appropriate.

(3) The application may be made orally unless—

(a) rule 28.5 applies; or

(b) the court otherwise directs.

[Note. The court may issue a warrant for a witness’ arrest if that witness fails to obey a witness summons directed to him: see section 97(3) of the Magistrates’ Courts Act 1980 and section 4 of the Criminal Procedure (Attendance of Witnesses) Act 1965. Before a magistrates’ court may issue a warrant under section 97(3) of the 1980 Act, the witness must first be paid or offered a reasonable amount for costs and expenses.]

Written application: form and service

28.4

(1) An application in writing under rule 28.3 must be in the form set out in the Practice Direction, containing the same declaration of truth as a witness statement.

(2) The party applying must serve the application—

(a) in every case, on the court officer and as directed by the court; and

(b) as required by rule 28.5, if that rule applies.

[Note. Declarations of truth in witness statements are required by section 9 of the Criminal Justice Act 1967[^f00358]. Section 89 of the 1967 Act[^f00359]makes it an offence to make a written statement under section 9 of that Act which the person making it knows to be false or does not believe to be true.]

Application for summons to produce a document, etc.: special rules

28.5

(1) This rule applies to an application under rule 28.3 for a witness summons requiring the proposed witness—

(a) to produce in evidence a document or thing; or

(b) to give evidence about information apparently held in confidence,

that relates to another person.

(2) The application must be in writing in the form required by rule 28.4.

(3) The party applying must serve the application—

(a) on the proposed witness, unless the court otherwise directs; and

(b) on one or more of the following, if the court so directs—

(i) a person to whom the proposed evidence relates,

(ii) another party.

(4) The court must not issue a witness summons where this rule applies unless—

(a) everyone served with the application has had at least 14 days in which to make representations, including representations about whether there should be a hearing of the application before the summons is issued; and

(b) the court is satisfied that it has been able to take adequate account of the duties and rights, including rights of confidentiality, of the proposed witness and of any person to whom the proposed evidence relates.

(5) This rule does not apply to an application for an order to produce in evidence a copy of an entry in a banker’s book.

[Note. Under section 2A of the Criminal Procedure (Attendance of Witnesses) Act 1965[^f00360], a witness summons to produce a document or thing issued by the Crown Court may require the witness to produce it for inspection by the applicant before producing it in evidence.]

Application for summons to produce a document, etc.: court’s assessment of relevance and confidentiality

28.6

(1) This rule applies where a person served with an application for a witness summons requiring the proposed witness to produce in evidence a document or thing objects to its production on the ground that—

(a) it is not likely to be material evidence; or

(b) even if it is likely to be material evidence, the duties or rights, including rights of confidentiality, of the proposed witness or of any person to whom the document or thing relates, outweigh the reasons for issuing a summons.

(2) The court may require the proposed witness to make the document or thing available for the objection to be assessed.

(3) The court may invite—

(a) the proposed witness or any representative of the proposed witness; or

(b) a person to whom the document or thing relates or any representative of such a person,

to help the court assess the objection.

Application to withdraw a summons, warrant or order

28.7

(1) The court may withdraw a witness summons, warrant or order if one of the following applies for it to be withdrawn—

(a) the party who applied for it, on the ground that it no longer is needed;

(b) the witness, on the grounds that—

(i) he was not aware of any application for it, and

(ii) he cannot give or produce evidence likely to be material evidence, or

(iii) even if he can, his duties or rights, including rights of confidentiality, or those of any person to whom the evidence relates, outweigh the reasons for the issue of the summons, warrant or order; or

(i) he was not aware of any application for it, and

(ii) that evidence is not likely to be material evidence, or

(iii) even if it is, his duties or rights, including rights of confidentiality, or those of the witness, outweigh the reasons for the issue of the summons, warrant or order.

(2) A person applying under the rule must—

(a) apply in writing as soon as practicable after becoming aware of the grounds for doing so, explaining why he wants the summons, warrant or order to be withdrawn; and

(b) serve the application on the court officer and as appropriate on—

(i) the witness,

(ii) the party who applied for the summons, warrant or order, and

(iii) any other person who he knows was served with the application for the summons, warrant or order.

(3) Rule 28.6 applies to an application under this rule that concerns a document or thing to be produced in evidence.

[Note. See sections 2B, 2C and 2E of the Criminal Procedure (Attendance of Witnesses) Act 1965[^f00361]for the Crown Court’s powers to withdraw a witness summons, including the power to order costs.]

Court’s power to vary requirements under this Part

28.8

(1) The court may—

(a) shorten or extend (even after it has expired) a time limit under this Part; and

(b) where a rule or direction requires an application under this Part to be in writing, allow that application to be made orally instead.

(2) Someone who wants the court to allow an application to be made orally under paragraph (1)(b) of this rule must—

(a) give as much notice as the urgency of his application permits to those on whom he would otherwise have served an application in writing; and

(b) in doing so explain the reasons for the application and for wanting the court to consider it orally.

PART 29 — MEASURES TO ASSIST A WITNESS OR DEFENDANT TO GIVE EVIDENCE

Contents of this Part

Section 1: understanding and applying this Part
When this Part applies	rule 29.1
Meaning of ‘witness’	rule 29.2

Section 2: general rules
Making an application for a direction or order	rule 29.3
Decisions and reasons	rule 29.4
Court’s power to vary requirements under this Part	rule 29.5
Custody of documents	rule 29.6
Declaration by intermediary	rule 29.7

Section 3: special measures directions
Exercise of court’s powers	rule 29.8
Special measures direction for a young witness	rule 29.9
Content of application for a special measures direction	rule 29.10
Application to vary or discharge a special measures direction	rule 29.11
Application containing information withheld from another party	rule 29.12
Representations in response	rule 29.13

Section 4: defendant’s evidence directions
Exercise of court’s powers	rule 29.14
Content of application for a defendant’s evidence direction	rule 29.15
Application to vary or discharge a defendant’s evidence direction	rule 29.16
Representations in response	rule 29.17

Section 5: witness anonymity orders
Exercise of court’s powers	rule 29.18
Content and conduct of application for a witness anonymity order	rule 29.19
Duty of court officer to notify the Director of Public Prosecutions	rule 29.20
Application to vary or discharge a witness anonymity order	rule 29.21
Representations in response	rule 29.22

Section 6: live link directions
Exercise of court’s powers	rule 29.23
Content of application for a live link direction	rule 29.24
Application to discharge a live link direction	rule 29.25
Representations in response	rule 29.26

SECTION 1: UNDERSTANDING AND APPLYING THIS PART

When this Part applies

29.1

This Part applies—

(a) where the court can give a direction (a ‘special measures direction’), under section 19 of the Youth Justice and Criminal Evidence Act 1999[^f00362], on an application or on its own initiative, for any of the following measures—

(i) preventing a witness from seeing the defendant (section 23 of the 1999 Act),

(ii) allowing a witness to give evidence by live link (section 24 of the 1999 Act[^f00363]),

(iii) hearing a witness’ evidence in private (section 25 of the 1999 Act),

(iv) dispensing with the wearing of wigs and gowns (section 26 of the 1999 Act),

(v) admitting video recorded evidence (sections 27 and 28 of the 1999 Act[^f00364]),

(vi) questioning a witness through an intermediary (section 29 of the 1999 Act[^f00365]),

(vii) using a device to help a witness communicate (section 30 of the 1999 Act);

(b) where the court can vary or discharge such a direction, under section 20 of the 1999 Act[^f00366];

(c) where the court can give, vary or discharge a direction (a ‘defendant’s evidence direction’) for a defendant to give evidence—

(i) by live link, under section 33A of the 1999 Act[^f00367], or

(ii) through an intermediary, under sections 33BA and 33BB of the 1999 Act[^f00368];

(d) where the court can—

(i) make a witness anonymity order, under section 86 of the Coroners and Justice Act 2009[^f00369], or

(ii) vary or discharge such an order, under section 91, 92 or 93 of the 2009 Act;

(e) where the court can give or discharge a direction (a ‘live link direction’), on an application or on its own initiative, for a witness to give evidence by live link under—

(i) section 32 of the Criminal Justice Act 1988[^f00370], or

(ii) sections 51 and 52 of the Criminal Justice Act 2003[^f00371];

(f) where the court can exercise any other power it has to give, vary or discharge a direction for a measure to help a witness give evidence.

Meaning of ‘witness’

29.2

In this Part, ‘witness’ means anyone (other than a defendant) for whose benefit an application, direction or order is made.

[Note. At the end of this Part is a summary of the circumstances in which a witness or defendant may be eligible for the assistance of one of the measures to which this Part applies.]

SECTION 2: GENERAL RULES

Making an application for a direction or order

29.3

A party who wants the court to exercise its power to give or make a direction or order must—

(a) apply in writing as soon as reasonably practicable, and in any event not more than—

(i) 28 days after the defendant pleads not guilty, in a magistrates’ court, or

(ii) 14 days after the defendant pleads not guilty, in the Crown Court; and

(b) serve the application on—

(i) the court officer, and

(ii) each other party.

[Note. See also rule 29.10 (content of application for a special measures direction), rule 29.15 (content of application for a defendant’s evidence direction), rule 29.19 (content and conduct of application for a witness anonymity order) and rule 29.24 (content of application for a live link direction).

Decisions and reasons

29.4

(1) A party who wants to introduce the evidence of a witness who is the subject of an application, direction or order must—

(a) inform the witness of the court’s decision as soon as reasonably practicable; and

(b) explain to the witness the arrangements that as a result will be made for him or her to give evidence.

(2) The court must announce, at a hearing in public before the witness gives evidence, the reasons for a decision—

(a) to give, make, vary or discharge a direction or order; or

(b) to refuse to do so.

[Note. See sections 20(5), 33A(8) and 33BB(4) of the Youth Justice and Criminal Evidence Act 1999 and sections 51(8) and 52(7) of the Criminal Justice Act 2003[^f00372].]

Court’s power to vary requirements under this Part

29.5

(1) The court may—

(a) shorten or extend (even after it has expired) a time limit under this Part; and

(b) allow an application or representations to be made in a different form to one set out in the Practice Direction, or to be made orally.

(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.

Custody of documents

29.6

Unless the court otherwise directs, the court officer may—

(a) keep a written application or representations; or

(b) arrange for the whole or any part to be kept by some other appropriate person, subject to any conditions that the court may impose.

Declaration by intermediary

29.7

(1) This rule applies where—

(a) a video recorded interview with a witness is conducted through an intermediary;

(b) the court directs the examination of a witness or defendant through an intermediary.

(2) An intermediary must make a declaration—

(a) before such an interview begins;

(b) before the examination begins (even if such an interview with the witness was conducted through the same intermediary).

(3) The declaration must be in these terms—

I solemnly, sincerely and truly declare [orI swear by Almighty God] that I will well and faithfully communicate questions and answers and make true explanation of all matters and things as shall be required of me according to the best of my skill and understanding.

SECTION 3: SPECIAL MEASURES DIRECTIONS

[Note. The rules in Section 2 (general rules) also apply.]

Exercise of court’s powers

29.8

The court may decide whether to give, vary or discharge a special measures direction—

(a) at a hearing, in public or in private, or without a hearing;

(b) in a party’s absence, if that party—

(i) applied for the direction, variation or discharge, or

(ii) has had at least 14 days in which to make representations.

Special measures direction for a young witness

29.9

(1) This rule applies where, under section 21 or section 22 of the Youth Justice and Criminal Evidence Act 1999[^f00373], the primary rule requires the court to give a direction for a special measure to assist a child witness or a qualifying witness—

(a) on an application, if one is made; or

(b) on the court’s own initiative, in any other case.

(2) A party who wants to introduce the evidence of such a witness must as soon as reasonably practicable—

(a) notify the court that the witness is eligible for assistance;

(b) provide the court with any information that the court may need to assess the witness’ views, if the witness does not want the primary rule to apply; and

(i) the court officer, and

(ii) each other party.

[Note. Under sections 21 and 22 of the Youth Justice and Criminal Evidence Act 1999, a ‘child witness’ is one who is under 18, and a ‘qualifying witness’ is one who was a child witness when interviewed.

Content of application for a special measures direction

29.10

An applicant for a special measures direction must—

(a) explain how the witness is eligible for assistance;

(b) explain why special measures would be likely to improve the quality of the witness’ evidence;

(c) propose the measure or measures that in the applicant’s opinion would be likely to maximise, so far as practicable, the quality of that evidence;

(d) report any views that the witness has expressed about—

(i) his or her eligibility for assistance,

(ii) the likelihood that special measures would improve the quality of his or her evidence, and

(iii) the measure or measures proposed by the applicant;

(e) in a case in which a child witness or a qualifying witness does not want the primary rule to apply, provide any information that the court may need to assess the witness’ views;

(f) in a case in which the applicant proposes that the witness should give evidence by live link—

(i) identify someone to accompany the witness while the witness gives evidence,

(ii) name that person, if possible, and

(iii) explain why that person would be an appropriate companion for the witness, including the witness’ own views;

(g) in a case in which the applicant proposes the admission of video recorded evidence, identify—

(i) the date and duration of the recording,

(ii) which part the applicant wants the court to admit as evidence, if the applicant does not want the court to admit all of it;

(h) attach any other material on which the applicant relies; and

(i) if the applicant wants a hearing, ask for one, and explain why it is needed.

[Note. The Practice Direction sets out a form of application for use in connection with this rule.]

Application to vary or discharge a special measures direction

29.11

(1) A party who wants the court to vary or discharge a special measures direction must—

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

(b) serve the application on—

(i) the court officer, and

(ii) each other party.

(2) The applicant must—

(a) explain what material circumstances have changed since the direction was given (or last varied, if applicable);

(b) explain why the direction should be varied or discharged; and

[Note. Under section 20 of the Youth Justice and Criminal Evidence Act 1999, the court can vary or discharge a special measures direction—

(a) on application, if there has been a material change of circumstances; or

(b) on the court’s own initiative.]

Application containing information withheld from another party

29.12

(1) This rule applies where—

(a) an applicant serves an application for a special measures direction, or for its variation or discharge; and

(b) the application includes information that the applicant thinks ought not be revealed to another party.

(2) The applicant must—

(a) omit that information from the part of the application that is served on that other party;

(b) mark the other part to show that, unless the court otherwise directs, it is only for the court; and

(3) Any hearing of an application to which this rule applies—

(a) must be in private, unless the court otherwise directs; and

(b) if the court so directs, may be, wholly or in part, in the absence of a party from whom information has been withheld.

(4) At any hearing of an application to which this rule applies—

(a) the general rule is that the court must consider, in the following sequence—

(i) representations first by the applicant and then by each other party, in all the parties’ presence, and then

(ii) further representations by the applicant, in the absence of a party from whom information has been withheld; but

(b) the court may direct other arrangements for the hearing.

[Note. See section 20 of the Youth Justice and Criminal Evidence Act 1999.]

Representations in response

29.13

(1) This rule applies where a party wants to make representations about—

(a) an application for a special measures direction;

(b) an application for the variation or discharge of such a direction; or

(2) Such a party must—

(a) serve the representations on—

(i) the court officer, and

(ii) each other party;

(b) do so not more than 14 days after, as applicable—

(i) service of the application, or

(ii) notice of the direction, variation or discharge that the court proposes; and

(3) Where representations include information that the person making them thinks ought not be revealed to another party, that person must—

(a) omit that information from the representations served on that other party;

(b) mark the information to show that, unless the court otherwise directs, it is only for the court; and

(4) Representations against a special measures direction must explain, as appropriate—

(a) why the witness is not eligible for assistance;

(b) if the witness is eligible for assistance, why—

(i) no special measure would be likely to improve the quality of the witness’ evidence,

(ii) the proposed measure or measures would not be likely to maximise, so far as practicable, the quality of the witness’ evidence, or

(iii) the proposed measure or measures might tend to inhibit the effective testing of that evidence;

(c) in a case in which the admission of video recorded evidence is proposed, why it would not be in the interests of justice for the recording, or part of it, to be admitted as evidence.

(5) Representations against the variation or discharge of a special measures direction must explain why it should not be varied or discharged.

[Note. Under sections 21 and 22 of the Youth Justice and Criminal Evidence Act 1999, where the witness is a child witness or a qualifying witness the special measures that the court usually must direct must be treated as likely to maximise, so far as practicable, the quality of the witness’ evidence, irrespective of representations to the contrary.]

SECTION 4: DEFENDANT’S EVIDENCE DIRECTIONS

[Note. The rules in Section 2 (general rules) also apply.]

Exercise of court’s powers

29.14

The court may decide whether to give, vary or discharge a defendant’s evidence direction—

(a) at a hearing, in public or in private, or without a hearing;

(b) in a party’s absence, if that party—

(i) applied for the direction, variation or discharge, or

(ii) has had at least 14 days in which to make representations.

Content of application for a defendant’s evidence direction

29.15

An applicant for a defendant’s evidence direction must—

(a) explain how the proposed direction meets the conditions prescribed by the Youth Justice and Criminal Evidence Act 1999;

(b) in a case in which the applicant proposes that the defendant give evidence by live link—

(i) identify a person to accompany the defendant while the defendant gives evidence, and

(ii) explain why that person is appropriate;

[Note. See sections 33A and 33BA of the Youth Justice and Criminal Evidence Act 1999.]

Application to vary or discharge a defendant’s evidence direction

29.16

(1) A party who wants the court to vary or discharge a defendant’s evidence direction must—

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

(b) serve the application on—

(i) the court officer, and

(ii) each other party.

(2) The applicant must—

(a) on an application to discharge a live link direction, explain why it is in the interests of justice to do so;

(b) on an application to discharge a direction for an intermediary, explain why it is no longer necessary in order to ensure that the defendant receives a fair trial;

(c) on an application to vary a direction for an intermediary, explain why it is necessary for the direction to be varied in order to ensure that the defendant receives a fair trial; and

(d) ask for a hearing, if the applicant wants one, and explain why it is needed.

[Note. See sections 33A(7) and 33BB of the Youth Justice and Criminal Evidence Act 1999.]

Representations in response

29.17

(1) This rule applies where a party wants to make representations about—

(a) an application for a defendant’s evidence direction;

(b) an application for the variation or discharge of such a direction; or

(2) Such a party must—

(a) serve the representations on—

(i) the court officer, and

(ii) each other party;

(b) do so not more than 14 days after, as applicable—

(i) service of the application, or

(ii) notice of the direction, variation or discharge that the court proposes; and

(3) Representations against a direction, variation or discharge must explain why the conditions prescribed by the Youth Justice and Criminal Evidence Act 1999 are not met.

SECTION 5: WITNESS ANONYMITY ORDERS

[Note. The rules in Section 2 (general rules) also apply.]

Exercise of court’s powers

29.18

(1) The court may decide whether to make, vary or discharge a witness anonymity order—

(a) at a hearing (which must be in private, unless the court otherwise directs), or without a hearing (unless any party asks for one);

(b) in the absence of a defendant.

(2) The court must not exercise its power to make, vary or discharge a witness anonymity order, or to refuse to do so—

(a) before or during the trial, unless each party has had an opportunity to make representations;

(b) on an appeal by the defendant to which applies Part 63 (appeal to the Crown Court) or Part 68 (appeal to the Court of Appeal about conviction or sentence), unless in each party’s case—

(i) that party has had an opportunity to make representations, or

(ii) the appeal court is satisfied that it is not reasonably practicable to communicate with that party;

(i) each has had an opportunity to make representations, or

(ii) the court is satisfied that it is not reasonably practicable to communicate with that party or witness.

Content and conduct of application for a witness anonymity order

29.19

(1) An applicant for a witness anonymity order must—

(a) include in the application nothing that might reveal the witness’ identity;

(b) describe the measures proposed by the applicant;

(c) explain how the proposed order meets the conditions prescribed by section 88 of the Coroners and Justice Act 2009[^f00374];

(d) explain why no measures other than those proposed will suffice, such as—

(i) an admission of the facts that would be proved by the witness,

(ii) an order restricting public access to the trial,

(iii) reporting restrictions, in particular under section 46 of the Youth Justice and Criminal Evidence Act 1999[^f00375] or under section 39 of the Children and Young Persons Act 1933[^f00376],

(iv) a direction for a special measure under section 19 of the Youth Justice and Criminal Evidence Act 1999,

(v) introduction of the witness’ written statement as hearsay evidence, under section 116 of the Criminal Justice Act 2003[^f00377], or

(vi) arrangements for the protection of the witness;

(e) attach to the application—

(i) a witness statement setting out the proposed evidence, edited in such a way as not to reveal the witness’ identity,

(ii) where the prosecutor is the applicant, any further prosecution evidence to be served, and any further prosecution material to be disclosed under the Criminal Procedure and Investigations Act 1996, similarly edited, and

(iii) any defence statement that has been served, or as much information as may be available to the applicant that gives particulars of the defence; and

(f) ask for a hearing, if the applicant wants one.

(2) At any hearing of the application, the applicant must—

(a) identify the witness to the court, unless at the prosecutor’s request the court otherwise directs; and

(b) present to the court, unless it otherwise directs—

(i) the unedited witness statement from which the edited version has been prepared,

(ii) where the prosecutor is the applicant, the unedited version of any further prosecution evidence or material from which an edited version has been prepared, and

(iii) such further material as the applicant relies on to establish that the proposed order meets the conditions prescribed by section 88 of the 2009 Act.

(3) At any such hearing—

(a) the general rule is that the court must consider, in the following sequence—

(i) representations first by the applicant and then by each other party, in all the parties’ presence, and then

(ii) information withheld from a defendant, and further representations by the applicant, in the absence of any (or any other) defendant; but

(b) the court may direct other arrangements for the hearing.

(4) Before the witness gives evidence, the applicant must identify the witness to the court—

(a) if not already done;

(b) without revealing the witness’ identity to any other party or person; and

Duty of court officer to notify the Director of Public Prosecutions

29.20

The court officer must notify the Director of Public Prosecutions of an application, unless the prosecutor is, or acts on behalf of, a public authority.

Application to vary or discharge a witness anonymity order

29.21

(1) A party who wants the court to vary or discharge a witness anonymity order, or a witness who wants the court to do so when the case is over, must—

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

(b) serve the application on—

(i) the court officer, and

(ii) each other party.

(2) The applicant must—

(a) explain what material circumstances have changed since the order was made (or last varied, if applicable);

(b) explain why the order should be varied or discharged, taking account of the conditions for making an order; and

(3) Where an application includes information that the applicant thinks might reveal the witness’ identity, the applicant must—

(a) omit that information from the application that is served on a defendant;

(b) mark the information to show that it is only for the court and the prosecutor (if the prosecutor is not the applicant); and

(4) Where a party applies to vary or discharge a witness anonymity order after the trial and any appeal are over, the party who introduced the witness’ evidence must serve the application on the witness.

[Note. Under sections 91, 92 and 93 of the Coroners and Justice Act 2009, the court can vary or discharge a witness anonymity order—

(a) on an application, if there has been a material change of circumstances since it was made or previously varied; or

(b) on the court’s own initiative, unless the trial and any appeal are over.]

Representations in response

29.22

(1) This rule applies where a party or, where the case is over, a witness, wants to make representations about—

(a) an application for a witness anonymity order;

(b) an application for the variation or discharge of such an order; or

(2) Such a party or witness must—

(a) serve the representations on—

(i) the court officer, and

(ii) each other party;

(b) do so not more than 14 days after, as applicable—

(i) service of the application, or

(ii) notice of the variation or discharge that the court proposes; and

(3) Where representations include information that the person making them thinks might reveal the witness’ identity, that person must—

(a) omit that information from the representations served on a defendant;

(b) mark the information to show that it is only for the court (and for the prosecutor, if relevant); and

(4) Representations against a witness anonymity order must explain why the conditions for making the order are not met.

(5) Representations against the variation or discharge of such an order must explain why it would not be appropriate to vary or discharge it, taking account of the conditions for making an order.

(6) A prosecutor’s representations in response to an application by a defendant must include all information available to the prosecutor that is relevant to the conditions and considerations specified by sections 88 and 89 of the Coroners and Justice Act 2009.

SECTION 6: LIVE LINK DIRECTIONS

[Note. The rules in Section 2 (general rules) also apply. The rules in this Section do not apply to an application for a special measures direction allowing a witness to give evidence by live link: as to which, see the rules in Section 3 (special measures directions).]

Exercise of court’s powers

29.23

The court may decide whether to give or discharge a live link direction—

(a) at a hearing, in public or in private, or without a hearing;

(b) in a party’s absence, if that party—

(i) applied for the direction or discharge, or

(ii) has had at least 14 days in which to make representations.

Content of application for a live link direction

29.24

An applicant for a live link direction must—

(a) unless the court otherwise directs, identify the place from which the witness will give evidence;

(b) if that place is in the United Kingdom, explain why it would be in the interests of the efficient or effective administration of justice for the witness to give evidence by live link;

(i) name that person, if possible, and

(ii) explain why it is appropriate for the witness to be accompanied;

(d) ask for a hearing, if the applicant wants one, and explain why it is needed.

[Note. See section 32 of the Criminal Justice Act 1988[^f00378]and section 51 of the Criminal Justice Act 2003[^f00379].

Application to discharge a live link direction

29.25

(1) A party who wants the court to discharge a live link direction must—

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

(b) serve the application on—

(i) the court officer, and

(ii) each other party.

(2) The applicant must—

(a) explain what material circumstances have changed since the direction was given;

(b) explain why it is in the interests of justice to discharge the direction; and

[Note. See section 32(4) of the Criminal Justice Act 1988[^f00380]and section 52(3) of the Criminal Justice Act 2003[^f00381].]

Representations in response

29.26

(1) This rule applies where a party wants to make representations about—

(a) an application for a live link direction;

(b) an application for the discharge of such a direction; or

(2) Such a party must—

(a) serve the representations on—

(i) the court officer, and

(ii) each other party;

(b) do so not more than 14 days after, as applicable—

(i) service of the application, or

(ii) notice of the direction or discharge that the court proposes; and

(3) Representations against a direction or discharge must explain, as applicable, why the conditions prescribed by the Criminal Justice Act 1988 or the Criminal Justice Act 2003 are not met.

PART 30

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

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

Contents of this Part

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

Restrictions on cross-examination of witness

31.1

(1) This rule and rules 31.2 and 31.3 apply where an accused is prevented from cross-examining a witness in person by virtue of section 34, 35 or 36 of the Youth Justice and Criminal Evidence Act 1999[^f00390].

(2) The court shall explain to the accused as early in the proceedings as is reasonably practicable that he—

(a) is prevented from cross-examining a witness in person; and

(b) should arrange for a legal representative to act for him for the purpose of cross-examining the witness.

(3) The accused shall notify the court officer within 7 days of the court giving its explanation, or within such other period as the court may in any particular case allow, of the action, if any, he has taken.

(4) Where he has arranged for a legal representative to act for him, the notification shall include details of the name and address of the representative.

(5) The notification shall be in writing.

(6) The court officer shall notify all other parties to the proceedings of the name and address of the person, if any, appointed to act for the accused.

(7) Where the court gives its explanation under paragraph (2) to the accused either within 7 days of the day set for the commencement of any hearing at which a witness in respect of whom a prohibition under section 34, 35 or 36 of the 1999 Act applies may be cross-examined or after such a hearing has commenced, the period of 7 days shall be reduced in accordance with any directions issued by the court.

(8) Where at the end of the period of 7 days or such other period as the court has allowed, the court has received no notification from the accused it may grant the accused an extension of time, whether on its own motion or on the application of the accused.

(9) Before granting an extension of time, the court may hold a hearing at which all parties to the proceedings may attend and be heard.

(10) Any extension of time shall be of such period as the court considers appropriate in the circumstances of the case.

(11) The decision of the court as to whether to grant the accused an extension of time shall be notified to all parties to the proceedings by the court officer.

Appointment of legal representative by the court

31.2

(1) Where the court decides, in accordance with section 38(4) of the Youth Justice and Criminal Evidence Act 1999, to appoint a qualified legal representative, the court officer shall notify all parties to the proceedings of the name and address of the representative.

(2) An appointment made by the court under section 38(4) of the 1999 Act shall, except to such extent as the court may in any particular case determine, terminate at the conclusion of the cross-examination of the witness or witnesses in respect of whom a prohibition under section 34, 35 or 36 of the 1999 Act applies.

Appointment arranged by the accused

31.3

(1) The accused may arrange for the qualified legal representative, appointed by the court under section 38(4) of the Youth Justice and Criminal Evidence Act 1999, to be appointed to act for him for the purpose of cross-examining any witness in respect of whom a prohibition under section 34, 35 or 36 of the 1999 Act applies.

(2) Where such an appointment is made—

(a) both the accused and the qualified legal representative appointed shall notify the court of the appointment; and

(b) the qualified legal representative shall, from the time of his appointment, act for the accused as though the arrangement had been made under section 38(2)(a) of the 1999 Act and shall cease to be the representative of the court under section 38(4).

(3) Where the court receives notification of the appointment either from the qualified legal representative or from the accused but not from both, the court shall investigate whether the appointment has been made, and if it concludes that the appointment has not been made, paragraph (2)(b) shall not apply.

(4) An accused may, notwithstanding an appointment by the court under section 38(4) of the 1999 Act, arrange for a legal representative to act for him for the purpose of cross-examining any witness in respect of whom a prohibition under section 34, 35 or 36 of the 1999 Act applies.

(5) Where the accused arranges for, or informs the court of his intention to arrange for, a legal representative to act for him, he shall notify the court, within such period as the court may allow, of the name and address of any person appointed to act for him.

(6) Where the court is notified within the time allowed that such an appointment has been made, any qualified legal representative appointed by the court in accordance with section 38(4) of the 1999 Act shall be discharged.

(7) The court officer shall, as soon as reasonably practicable after the court receives notification of an appointment under this rule or, where paragraph (3) applies, after the court is satisfied that the appointment has been made, notify all the parties to the proceedings—

(a) that the appointment has been made;

(b) where paragraph (4) applies, of the name and address of the person appointed; and

(c) that the person appointed by the court under section 38(4) of the 1999 Act has been discharged or has ceased to act for the court.

Prohibition on cross-examination of witness

31.4

(1) An application by the prosecutor for the court to give a direction under section 36 of the Youth Justice and Criminal Evidence Act 1999 in relation to any witness must be sent to the court officer and at the same time a copy thereof must be sent by the applicant to every other party to the proceedings.

(2) In his application the prosecutor must state why, in his opinion—

(a) the evidence given by the witness is likely to be diminished if cross-examination is undertaken by the accused in person;

(b) the evidence would be improved if a direction were given under section 36(2) of the 1999 Act; and

(3) On receipt of the application the court officer must refer it—

(a) if the trial has started, to the court of trial; or

(b) if the trial has not started when the application is received—

(i) to the judge or court designated to conduct the trial, or

(ii) if no judge or court has been designated for that purpose, to such judge or court designated for the purposes of hearing that application.

(4) Where a copy of the application is received by a party to the proceedings more than 14 days before the date set for the trial to begin, that party may make observations in writing on the application to the court officer, but any such observations must be made within 14 days of the receipt of the application and be copied to the other parties to the proceedings.

(5) A party to whom an application is sent in accordance with paragraph (1) who wishes to oppose the application must give his reasons for doing so to the court officer and the other parties to the proceedings.

(6) Those reasons must be notified—

(a) within 14 days of the date the application was served on him, if that date is more than 14 days before the date set for the trial to begin;

(b) if the trial has begun, in accordance with any directions issued by the court; or

(7) Where the application made in accordance with paragraph (1) is made before the date set for the trial to begin and—

(a) is not contested by any party to the proceedings, the court may determine the application without a hearing;

(b) is contested by a party to the proceedings, the court must direct a hearing of the application.

(8) Where the application is made after the trial has begun—

(a) the application may be made orally; and

(b) the court may give such directions as it considers appropriate to deal with the application.

(9) Where a hearing of the application is to take place, the court officer shall notify each party to the proceedings of the time and place of the hearing.

(10) A party notified in accordance with paragraph (9) may be present at the hearing and be heard.

(11) The court officer must, as soon as possible after the determination of an application made in accordance with paragraph (1), give notice of the decision and the reasons for it to all the parties to the proceedings.

(12) A person making an oral application under paragraph (8)(a) must—

(a) give reasons why the application was not made before the trial commenced; and

(b) provide the court with the information set out in paragraph (2).

PART 32 — INTERNATIONAL CO-OPERATION

Contents of this Part

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

Notice required to accompany process served outside the United Kingdom and translations

32.1

(1) The notice which by virtue of section 3(4)(b) of the Crime (International Co-operation) Act 2003[^f00391] (general requirements for service of process) must accompany any process served outside the United Kingdom must give the information specified in paragraphs (2) and (4) below.

(2) The notice must—

(a) state that the person required by the process to appear as a party or attend as a witness can obtain information about his rights in connection therewith from the relevant authority; and

(b) give the particulars specified in paragraph (4) about that authority.

(3) The relevant authority where the process is served—

(a) at the request of the prosecuting authority, is that authority; or

(b) at the request of the defendant or the prosecutor in the case of a private prosecution, is the court by which the process is served.

(4) The particulars referred to in paragraph (2) are—

(a) the name and address of the relevant authority, together with its telephone and fax numbers and e-mail address; and

(b) the name of a person at the relevant authority who can provide the information referred to in paragraph (2)(a), together with his telephone and fax numbers and e-mail address.

(5) The justices’ clerk or Crown Court officer must send, together with any process served outside the United Kingdom —

(a) any translation which is provided under section 3(3)(b) of the 2003 Act; and

(b) any translation of the information required to be given by this rule which is provided to him.

(6) In this rule, ‘process’ has the same meaning as in section 51(3) of the 2003 Act.

Proof of service outside the United Kingdom

32.2

(1) A statement in a certificate given by or on behalf of the Secretary of State—

(a) that process has been served on any person under section 4(1) of the Crime (International Co-operation) Act 2003(service of process otherwise than by post);

(b) of the manner in which service was effected; and

shall be admissible as evidence of any facts so stated.

(2) In this rule, ‘process’ has the same meaning as in section 51(3) of the 2003 Act.

Supply of copy of notice of request for assistance abroad

32.3

Where a request for assistance under section 7 of the Crime (International Co-operation) Act 2003 is made by a justice of the peace or a judge exercising the jurisdiction of the Crown Court and is sent in accordance with section 8(1) of the 2003 Act, the justices’ clerk or the Crown Court officer shall send a copy of the letter of request to the Secretary of State as soon as practicable after the request has been made.

Persons entitled to appear and take part in proceedings before a nominated court, and exclusion of the public

32.4

A court nominated under section 15(1) of the Crime (International Co-operation) Act 2003 (nominating a court to receive evidence) may—

(a) determine who may appear or take part in the proceedings under Schedule 1 to the 2003 Act before the court and whether a party to the proceedings is entitled to be legally represented; and

(b) direct that the public be excluded from those proceedings if it thinks it necessary to do so in the interests of justice.

Record of proceedings to receive evidence before a nominated court

32.5

(1) Where a court is nominated under section 15(1) of the Crime (International Co-operation) Act 2003 the justices’ clerk or Crown Court officer shall enter in an overseas record—

(a) details of the request in respect of which the notice under section 15(1) of the 2003 Act was given;

(b) the date on which, and place at which, the proceedings under Schedule 1 to the 2003 Act in respect of that request took place;

(d) the name of any person who took part in the proceedings as a legal representative or an interpreter;

(e) whether a witness was required to give evidence on oath or (by virtue of section 5 of the Oaths Act 1978[^f00392]) after making a solemn affirmation; and

(f) whether the opportunity to cross-examine any witness was refused.

(2) When the court gives the evidence received by it under paragraph 6(1) of Schedule 1 to the 2003 Act to the court or authority that made the request or to the territorial authority for forwarding to the court or authority that made the request, the justices’ clerk or Crown Court officer shall send to the court, authority or territorial authority (as the case may be) a copy of an extract of so much of the overseas record as relates to the proceedings in respect of that request.

[Note. As to the keeping of an overseas record, see rule 32.9.]

Interpreter for the purposes of proceedings involving a television or telephone link

32.6

(1) This rule applies where a court is nominated under section 30(3) (hearing witnesses in the UK through television links) or section 31(4) (hearing witnesses in the UK by telephone) of the Crime (International Co-operation) Act 2003.

(2) Where it appears to the justices’ clerk or the Crown Court officer that the witness to be heard in the proceedings under Part 1 or 2 of Schedule 2 to the 2003 Act (‘the relevant proceedings’) is likely to give evidence in a language other than English, he shall make arrangements for an interpreter to be present at the proceedings to translate what is said into English.

(3) Where it appears to the justices’ clerk or the Crown Court officer that the witness to be heard in the relevant proceedings is likely to give evidence in a language other than that in which the proceedings of the court referred to in section 30(1) or, as the case may be, 31(1) of the 2003 Act (‘the external court’) will be conducted, he shall make arrangements for an interpreter to be present at the relevant proceedings to translate what is said into the language in which the proceedings of the external court will be conducted.

(4) Where the evidence in the relevant proceedings is either given in a language other than English or is not translated into English by an interpreter, the court shall adjourn the proceedings until such time as an interpreter can be present to provide a translation into English.

(5) Where a court in Wales understands Welsh—

(a) paragraph (2) does not apply where it appears to the justices’ clerk or Crown Court officer that the witness in question is likely to give evidence in Welsh;

(b) paragraph (4) does not apply where the evidence is given in Welsh; and

Record of television link hearing before a nominated court

32.7

(1) This rule applies where a court is nominated under section 30(3) of the Crime (International Co-operation) Act 2003.

(2) The justices’ clerk or Crown Court officer shall enter in an overseas record—

(a) details of the request in respect of which the notice under section 30(3) of the 2003 Act was given;

(b) the date on which, and place at which, the proceedings under Part 1 of Schedule 2 to that Act in respect of that request took place;

(d) the name of the witness who gave evidence;

(e) the name of any person who took part in the proceedings as a legal representative or an interpreter; and

(f) the language in which the evidence was given.

(3) As soon as practicable after the proceedings under Part 1 of Schedule 2 to the 2003 Act took place, the justices’ clerk or Crown Court officer shall send to the external authority that made the request a copy of an extract of so much of the overseas record as relates to the proceedings in respect of that request.

[Note. As to the keeping of an overseas record, see rule 32.9.]

Record of telephone link hearing before a nominated court

32.8

(1) This rule applies where a court is nominated under section 31(4) of the Crime (International Co-operation) Act 2003.

(2) The justices’ clerk or Crown Court officer shall enter in an overseas record—

(a) details of the request in respect of which the notice under section 31(4) of the 2003 Act was given;

(b) the date, time and place at which the proceedings under Part 2 of Schedule 2 to the 2003 Act took place;

(d) the name of any interpreter who acted at the proceedings; and

(e) the language in which the evidence was given.

[Note. As to the keeping of an overseas record, see rule 32.9.]

Overseas record

32.9

(1) The overseas records of a magistrates’ court shall be part of the register (within the meaning of section 150(1) of the Magistrates’ Courts Act 1980[^f00393]).

(2) The overseas records of any court shall not be open to inspection by any person except—

(a) as authorised by the Secretary of State; or

(b) with the leave of the court.

[Note. As to the making of court records, see rule 5.4.]

Overseas freezing orders

32.10

(1) This rule applies where a court is nominated under section 21(1) of the Crime (International Co-operation) Act 2003[^f00394] to give effect to an overseas freezing order.

(2) Where the Secretary of State serves a copy of such an order on the court officer—

(a) the general rule is that the court must consider the order no later than the next business day;

(b) exceptionally, the court may consider the order later than that, but not more than 5 business days after service.

(3) The court must not consider the order unless—

(a) it is satisfied that the chief officer of police for the area in which the evidence is situated has had notice of the order; and

(b) that chief officer of police has had an opportunity to make representations, at a hearing if that officer wants.

(4) The court may consider the order—

(a) without a hearing; or

(b) at a hearing, in public or in private.

PART 33 — EXPERT EVIDENCE

Contents of this Part

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

[Note. For the use of an expert report as evidence, see section 30 of the Criminal Justice Act 1988[^f00395].]

Reference to expert

33.1

A reference to an ‘expert’ in this Part is a reference to a person who is required to give or prepare expert evidence for the purpose of criminal proceedings, including evidence required to determine fitness to plead or for the purpose of sentencing.

[Note. Expert medical evidence may be required to determine fitness to plead under section 4 of the Criminal Procedure (Insanity) Act 1964[^f00396]. It may be required also under section 11 of the Powers of Criminal Courts (Sentencing) Act 2000[^f00397], under Part III of the Mental Health Act 1983[^f00398]or under Part 12 of the Criminal Justice Act 2003[^f00399]. Those Acts contain requirements about the qualification of medical experts.]

Expert’s duty to the court

33.2

(1) An expert must help the court to achieve the overriding objective by giving objective, unbiased opinion on matters within his expertise.

(2) This duty overrides any obligation to the person from whom he receives instructions or by whom he is paid.

(3) This duty includes an obligation to inform all parties and the court if the expert’s opinion changes from that contained in a report served as evidence or given in a statement.

Content of expert’s report

33.3

(1) An expert’s report must—

(a) give details of the expert’s qualifications, relevant experience and accreditation;

(b) give details of any literature or other information which the expert has relied on in making the report;

(c) contain a statement setting out the substance of all facts given to the expert which are material to the opinions expressed in the report, or upon which those opinions are based;

(d) make clear which of the facts stated in the report are within the expert’s own knowledge;

(e) say who carried out any examination, measurement, test or experiment which the expert has used for the report and—

(i) give the qualifications, relevant experience and accreditation of that person,

(ii) say whether or not the examination, measurement, test or experiment was carried out under the expert’s supervision, and

(iii) summarise the findings on which the expert relies;

(f) where there is a range of opinion on the matters dealt with in the report—

(i) summarise the range of opinion, and

(ii) give reasons for his own opinion;

(g) if the expert is not able to give his opinion without qualification, state the qualification;

(h) contain a summary of the conclusions reached;

(i) contain a statement that the expert understands his duty to the court, and has complied and will continue to comply with that duty; and

(j) contain the same declaration of truth as a witness statement.

(2) Only sub-paragraphs (i) and (j) of rule 33.3(1) apply to a summary by an expert of his conclusions served in advance of that expert’s report.

[Note. Part 27 contains rules about witness statements. Declarations of truth in witness statements are required by section 9 of the Criminal Justice Act 1967[^f00400]. A party who accepts another party’s expert’s conclusions may admit them as facts under section 10 of the Criminal Justice Act 1967[^f00401]. Evidence of examinations etc. on which an expert relies may be admissible under section 127 of the Criminal Justice Act 2003[^f00402].]

Service of expert evidence

33.4

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

(a) serve it on—

(i) the court officer, and

(ii) each other party;

(b) serve it—

(i) as soon as practicable, and in any event

(ii) with any application in support of which that party relies on that evidence; and

(i) a record of any examination, measurement, test or experiment on which the expert’s findings and opinion are based, or that were carried out in the course of reaching those findings and opinion, and

(ii) anything on which any such examination, measurement, test or experiment was carried out.

(2) A party may not introduce expert evidence if that party has not complied with this rule, unless–

(a) every other party agrees; or

(b) the court gives permission.

[Note. Under section 81 of the Police and Criminal Evidence Act 1984[^f00403], and under section 20(3) of the Criminal Procedure and Investigations Act 1996[^f00404], rules may—

(a) require the disclosure of expert evidence before it is introduced as part of a party’s case; and

(b) prohibit its introduction without the court’s permission, if it was not disclosed as required.]

Expert to be informed of service of report

33.5

A party who serves on another party or on the court a report by an expert must, at once, inform that expert of that fact.

Pre-hearing discussion of expert evidence

33.6

(1) This rule applies where more than one party wants to introduce expert evidence.

(2) The court may direct the experts to—

(a) discuss the expert issues in the proceedings; and

(b) prepare a statement for the court of the matters on which they agree and disagree, giving their reasons.

(3) Except for that statement, the content of that discussion must not be referred to without the court’s permission.

(4) A party may not introduce expert evidence without the court’s permission if the expert has not complied with a direction under this rule.

[Note. At a pre-trial hearing, a court may make binding rulings about the admissibility of evidence and about questions of law under section 9 of the Criminal Justice Act 1987[^f00405]; sections 31 and 40 of the Criminal Procedure and Investigations Act 1996[^f00406]; and section 8A of the Magistrates’ Courts Act 1980[^f00407].]

Court’s power to direct that evidence is to be given by a single joint expert

33.7

(1) Where more than one defendant wants to introduce expert evidence on an issue at trial, the court may direct that the evidence on that issue is to be given by one expert only.

(2) Where the co-defendants cannot agree who should be the expert, the court may—

(a) select the expert from a list prepared or identified by them; or

(b) direct that the expert be selected in another way.

Instructions to a single joint expert

33.8

(1) Where the court gives a direction under rule 33.7 for a single joint expert to be used, each of the co-defendants may give instructions to the expert.

(2) When a co-defendant gives instructions to the expert he must, at the same time, send a copy of the instructions to the other co-defendant(s).

(3) The court may give directions about—

(a) the payment of the expert’s fees and expenses; and

(b) any examination, measurement, test or experiment which the expert wishes to carry out.

(4) The court may, before an expert is instructed, limit the amount that can be paid by way of fees and expenses to the expert.

(5) Unless the court otherwise directs, the instructing co-defendants are jointly and severally liable for the payment of the expert’s fees and expenses.

Court’s power to vary requirements under this Part

33.9

(1) The court may—

(a) extend (even after it has expired) a time limit under this Part;

(b) allow the introduction of expert evidence which omits a detail required by this Part.

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

(a) apply when serving the expert evidence for which it is required; and

(b) explain the delay.

PART 34 — HEARSAY EVIDENCE

Contents of this Part

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

When this Part applies

34.1

This Part applies—

(a) in a magistrates’ court and in the Crown Court;

(b) where a party wants to introduce hearsay evidence, within the meaning of section 114 of the Criminal Justice Act 2003[^f00408].

[Note. Under section 114 of the Criminal Justice Act 2003, a statement not made in oral evidence is admissible as evidence of any matter stated if—

(a) a statutory provision makes it admissible;

(b) a rule of law preserved by section 118 makes it admissible;

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

Notice to introduce hearsay evidence

34.2

(1) This rule applies where a party wants to introduce hearsay evidence for admission under any of the following sections of the Criminal Justice Act 2003—

(a) section 114(1)(d) (evidence admissible in the interests of justice);

(b) section 116 (evidence where a witness is unavailable);

(d) section 121 (multiple hearsay).

(2) That party must—

(a) serve notice on—

(i) the court officer, and

(ii) each other party;

(b) in the notice—

(i) identify the evidence that is hearsay,

(ii) set out any facts on which that party relies to make the evidence admissible,

(iii) explain how that party will prove those facts if another party disputes them, and

(iv) explain why the evidence is admissible; and

(3) A prosecutor who wants to introduce such evidence must serve the notice not more than—

(a) 28 days after the defendant pleads not guilty, in a magistrates’ court; or

(b) 14 days after the defendant pleads not guilty, in the Crown Court.

(4) A defendant who wants to introduce such evidence must serve the notice as soon as reasonably practicable.

(5) A party entitled to receive a notice under this rule may waive that entitlement by so informing—

(a) the party who would have served it; and

(b) the court.

[Note. The Practice Direction sets out a form of notice for use in connection with this rule.

Opposing the introduction of hearsay evidence

34.3

(1) This rule applies where a party objects to the introduction of hearsay evidence.

(2) That party must—

(a) apply to the court to determine the objection;

(b) serve the application on—

(i) the court officer, and

(ii) each other party;

(i) service of notice to introduce the evidence under rule 34.2,

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