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The Criminal Procedure Rules 2015

Type Statutory-Instrument

Publication 2015-07-03

Last updated 2020-10-05

State In force

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(i) the respondent, and

(ii) the person or property the subject of the investigation;

(d) in the case of an investigation in the United Kingdom, explain why the applicant thinks that—

(i) the person under investigation has benefited from criminal conduct, in the case of a confiscation investigation, or committed a money laundering offence, in the case of a money laundering investigation, or

(ii) the cash involved is property obtained through unlawful conduct, or is intended to be used in unlawful conduct, in the case of a detained cash investigation;

(e) in the case of an investigation outside the United Kingdom, explain why the applicant thinks that—

(i) there is an investigation by an overseas authority which relates to a criminal investigation or to criminal proceedings (including proceedings to remove the benefit of a person’s criminal conduct following that person’s conviction), and

(ii) the investigation is into whether property has been obtained as a result of or in connection with criminal conduct, or into the extent or whereabouts of such property;

(f) give the additional information required by whichever of rules 47.15 to 47.19 applies; and

(g) serve any order made on each respondent.

[Note. See also rules 47.3 and 47.4, under which the court may—

(a) exercise its powers in the parties’ absence;

(b) dispense with a requirement for service; and

Content of application for a production order

47.15

As well as complying with rule 47.14, an applicant who wants the court to make an order for the production of, or access to, material, must—

(a) describe that material;

(b) explain why the applicant thinks the material is in the respondent’s possession or control;

(i) expected to be subject to legal privilege, or

(ii) excluded material;

(d) explain why the material is likely to be of substantial value to the investigation;

(e) explain why it is in the public interest for the material to be produced, or for the applicant to be given access to it, having regard to—

(i) the benefit likely to accrue to the investigation if it is obtained, and

(ii) the circumstances in which the respondent has the material; and

(f) propose—

(i) the terms of the order, and

(ii) the period within which it should take effect, if 7 days from the date of the order would not be appropriate.

[Note. See sections 345 to 350 of the Proceeds of Crime Act 2002[^f00962] and articles 6 to 11 of the Proceeds of Crime Act 2002 (External Investigations) Order 2014[^f00963].Under those provisions—

(a) ‘excluded material’ means the same as under section 11 of the Police and Criminal Evidence Act 1984; and

(b) ‘legal privilege’ is defined by section 348 of the 2002 Act.

Content of application for an order to grant entry

47.16

An applicant who wants the court to make an order to grant entry in aid of a production order must—

(a) specify the premises to which entry is sought;

(b) explain why the order is needed; and

[Note. See section 347 of the Proceeds of Crime Act 2002 and article 8 of the Proceeds of Crime Act 2002 (External Investigations) Order 2014. The applicant for an order to grant entry must be an ‘appropriate officer’ as defined by section 378(1), (4) and (5) of the Act.]

Content of application for a disclosure order

47.17

As well as complying with rule 47.14, an applicant who wants the court to make a disclosure order must—

(a) describe in general terms the information that the applicant wants the respondent to provide;

(b) confirm that none of the information is—

(i) expected to be subject to legal privilege, or

(ii) excluded material;

(d) explain why it is in the public interest for the information to be provided, having regard to the benefit likely to accrue to the investigation if it is obtained; and

(e) propose the terms of the order.

[Note. See sections 357, 358 and 361 of the Proceeds of Crime Act 2002[^f00965] and articles 16, 17 and 20 of the Proceeds of Crime Act 2002 (External Investigations) Order 2014.

Content of application for a customer information order

47.18

As well as complying with rule 47.14, an applicant who wants the court to make a customer information order must—

(a) explain why customer information about the person under investigation is likely to be of substantial value to that investigation;

(b) explain why it is in the public interest for the information to be provided, having regard to the benefit likely to accrue to the investigation if it is obtained; and

[Note. See sections 363, 364, 365 and 368 of the Proceeds of Crime Act 2002[^f00966] and articles 22, 23, 24 and 27 of the Proceeds of Crime Act 2002 (External Investigations) Order 2014.

Content of application for an account monitoring order

47.19

As well as complying with rule 47.14, an applicant who wants the court to make an account monitoring order for the provision of account information must—

(a) specify—

(i) the information sought,

(ii) the period during which the applicant wants the respondent to provide that information (to a maximum of 90 days), and

(iii) when and in what manner the applicant wants the respondent to provide that information;

(b) explain why the information is likely to be of substantial value to the investigation;

(c) explain why it is in the public interest for the information to be provided, having regard to the benefit likely to accrue to the investigation if it is obtained; and

(d) propose the terms of the order.

[Note. See sections 370, 371 and 374 of the Proceeds of Crime Act 2002[^f00967] and articles 29, 30 and 33 of the Proceeds of Crime Act 2002 (External Investigations) Order 2014.

Application to vary or discharge an order

47.20

(1) This rule applies where one of the following wants the court to vary or discharge an order listed in rule 47.1(2)—

(a) an applicant;

(b) the respondent; or

(2) That applicant, respondent or person affected must—

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

(b) serve the application on—

(i) the court officer, and

(ii) the respondent, applicant, or any person known to be affected, as applicable;

(d) propose the terms of any variation; and

(e) ask for a hearing, if one is wanted, and explain why it is needed.

Application containing information withheld from a respondent or other person

47.21

(1) This rule applies where—

(a) an applicant serves on a respondent or other person an application for one of the orders listed in rule 47.1(2), or for the variation or discharge of such an order; and

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

(2) The applicant must—

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

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

(3) A hearing of an application to which this rule applies may take place, wholly or in part, in the absence of the respondent and any other person.

(4) At a 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 the respondent and any other person, in the presence of them all, and then

(ii) further representations by the applicant, in the others’ absence; but

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

Application to punish for contempt of court

47.22

(1) This rule applies where a person is accused of disobeying—

(a) a production order made under section 345 of the Proceeds of Crime Act 2002[^f00968] or article 6 of the Proceeds of Crime Act 2002 (External Investigations) Order 2014[^f00969]; or

(b) an account monitoring order made under section 370 of the 2002 Act or article 29 of the 2014 Order.

(2) An applicant who wants the court to exercise its power to punish that person for contempt of court must comply with the rules in Part 48 (Contempt of court).

[Note. The Crown Court has power to punish for contempt of court a person who disobeys its order. See sections 351(7) and 375(6) of the Proceeds of Crime Act 2002, articles 12(6) and 34(5) of the Proceeds of Crime Act 2002 (External Investigations) Order 2014 and section 45 of the Senior Courts Act 1981.

SECTION 5: ORDERS UNDER THE CORONERS AND JUSTICE ACT 2009

[Note. Rule 47.5 (Documents served on the court officer) also applies.]

Exercise of court's powers

47.23

(1) The court may determine an application for an investigation anonymity order, and any appeal against the refusal of such an order—

(a) at a hearing (which must be in private unless the court otherwise directs); or

(b) without a hearing.

(2) The court must determine an application to discharge an investigation anonymity order, and any appeal against the decision on such an application—

(a) at a hearing (which must be in private unless the court otherwise directs); and

(b) in the presence of the person specified in the order, unless—

(i) that person applied for the discharge of the order,

(ii) that person has had an opportunity to make representations, or

(iii) the court is satisfied that it is not reasonably practicable to communicate with that person.

(3) The court may consider an application or an appeal made orally instead of in writing.

Application for an investigation anonymity order

47.24

(1) This rule applies where an applicant wants a magistrates’ court to make an investigation anonymity order.

(2) The applicant must—

(a) apply in writing;

(b) serve the application on the court officer;

(i) the applicant wants the court to determine the application at a hearing, or

(ii) the court otherwise directs;

(d) explain how the proposed order meets the conditions prescribed by section 78 of the Coroners and Justice Act 2009[^f00970];

(e) say if the applicant intends to appeal should the court refuse the order;

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

(g) propose the terms of the order.

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

(a) identify to the court the person to be specified in the order, unless—

(i) the applicant has done so already, or

(ii) the court otherwise directs; and

(b) unless the applicant has done so already, inform the court if the applicant intends to appeal should the court refuse the order.

[Note. See section 77 of the Coroners and Justice Act 2009.]

Application to discharge an investigation anonymity order

47.25

(1) This rule applies where one of the following wants a magistrates’ court to discharge an investigation anonymity order—

(a) an applicant; or

(b) the person specified in the order.

(2) That applicant or the specified person must—

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

(b) serve the application on—

(i) the court officer, and as applicable

(ii) the applicant for the order, and

(iii) the specified person;

(i) what material circumstances have changed since the order was made, or since any previous application was made to discharge it, and

(ii) why it is appropriate for the order to be discharged; and

(d) attach—

(i) a copy of the order, and

(ii) any material on which the applicant relies.

(3) A party must inform the court if that party intends to appeal should the court discharge the order.

[Note. See section 80 of the Coroners and Justice Act 2009.]

Appeal

47.26

(1) This rule applies where one of the following (‘the appellant’) wants to appeal to the Crown Court—

(a) the applicant for an investigation anonymity order, where a magistrates’ court has refused to make the order;

(b) a party to an application to discharge such an order, where a magistrates’ court has decided that application.

(2) The appellant must—

(a) serve on the Crown Court officer a copy of the application to the magistrates’ court; and

(b) where the appeal concerns a discharge decision, notify each other party,

not more than 21 days after the decision against which the appellant wants to appeal.

(3) The Crown Court must hear the appeal without justices of the peace.

[Note. See sections 79 and 80(6) of the Coroners and Justice Act 2009, and section 74 of the Senior Courts Act 1981[^f00971].]

SECTION 6: ORDERS UNDER THE REGULATION OF INVESTIGATORY POWERS ACT 2000

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

Application for approval for authorisation or notice

47.27

(1) This rule applies where an applicant wants a magistrates’ court to make an order approving—

(a) under sections 23A and 23B of the Regulation of Investigatory Powers Act 2000[^f00972]—

(i) an authorisation to obtain or disclose communications data, under section 22(3) of the 2000 Act[^f00973], or

(ii) a notice that requires a postal or telecommunications operator if need be to obtain, and in any case to disclose, communications data, under section 22(4) of the 2000 Act;

(b) under sections 32A and 32B of the Regulation of Investigatory Powers Act 2000[^f00974], an authorisation for—

(i) the carrying out of directed surveillance, under section 28 of the 2000 Act, or

(ii) the conduct or use of a covert human intelligence source, under section 29 of the 2000 Act[^f00975].

(2) The applicant must—

(a) apply in writing and serve the application on the court officer;

(b) attach the authorisation or notice which the applicant wants the court to approve;

(i) as required by section 23A(3) and (4) of the 2000 Act, in relation to communications data,

(ii) as required by section 32A(3) and (4) of the 2000 Act, in relation to directed surveillance, or

(iii) as required by section 32A(5) and (6), and, if relevant, section 43(6A), of the 2000 Act[^f00976], in relation to a covert human intelligence source; and

(d) propose the terms of the order.

[Note. See also rules 47.3 and 47.4, under which the court may—

(a) exercise its powers in the parties’ absence; and

(b) consider an application made orally.

Exercise of court's power to quash an authorisation or notice

47.28

(1) This rule applies where, under section 23A or 32A of the Regulation of Investigatory Powers Act 2000, a magistrates’ court refuses to approve the grant, giving or renewal of an authorisation or notice.

(2) The court must not exercise its power to quash that authorisation or notice unless the applicant has had at least 2 business days from the date of the refusal in which to make representations.

[Note. See sections 23B(3) and 32B(3) of the Regulation of Investigatory Powers Act 2000.]

SECTION 7: SEARCH WARRANTS

[Note. Rule 47.5 (Documents served on the court officer) also applies.]

Exercise of court's powers

47.29

(1) The court must determine an application for a warrant—

(a) at a hearing, which must be in private unless the court otherwise directs;

(b) in the presence of the applicant; and

(c) in the absence of any person affected by the warrant, including any person in occupation or control of premises which the applicant wants to search.

(2) If the court so directs, the applicant may attend the hearing by live link.

(3) The court must not determine an application unless satisfied that sufficient time has been allowed for it.

(4) The court must not determine an application unless the applicant confirms, on oath or affirmation, that to the best of the applicant’s knowledge and belief—

(a) the application discloses all the information that is material to what the court must decide, including any circumstances that might reasonably be considered capable of undermining any of the grounds of the application; and

(b) the content of the application is true.

(5) If the court requires the applicant to answer a question about an application—

(a) the applicant’s answer must be on oath or affirmation;

(b) the court must arrange for a record of the gist of the question and reply; and

(i) specify the information the court requires, and

(ii) give directions for the presentation of any renewed application.

(6) Unless to do so would be inconsistent with other legislation, on an application the court may issue—

(a) a warrant in respect of specified premises;

(b) a warrant in respect of all premises occupied or controlled by a specified person;

(c) a warrant in respect of all premises occupied or controlled by a specified person which specifies some of those premises; or

(d) more than one warrant—

(i) each one in respect of premises specified in the warrant,

(ii) each one in respect of all premises occupied or controlled by a person specified in the warrant (whether or not such a warrant also specifies any of those premises), or

(iii) at least one in respect of specified premises and at least one in respect of all premises occupied or controlled by a specified person (whether or not such a warrant also specifies any of those premises).

[Note. See section 15 of the Police and Criminal Evidence Act 1984[^f00981]and section 2(4) of the Criminal Justice Act 1987[^f00982].]

Application for warrant under section 8 of the Police and Criminal Evidence Act 1984

47.30

(1) This rule applies where an applicant wants a magistrates’ court to issue a warrant or warrants under section 8 of the Police and Criminal Evidence Act 1984.

(2) The applicant must—

(a) apply in writing;

(b) serve the application on—

(i) the court officer, or

(ii) if the court office is closed, the court;

(i) to read and prepare for the application, and

(ii) for the hearing of the application; and

(d) tell the court when the applicant expects any warrant issued to be executed.

(3) The application must—

(a) specify the offence under investigation (and see paragraph (4));

(b) so far as practicable, identify the material sought (and see paragraph (5));

(d) state whether the applicant wants the premises to be searched on more than one occasion (and see paragraph (8)); and

(e) state whether the applicant wants other persons to accompany the officers executing the warrant or warrants (and see paragraph (9)).

(4) In relation to the offence under investigation, the application must—

(a) state whether that offence is—

(i) an indictable offence, or

(ii) a relevant offence as defined in section 28D of the Immigration Act 1971[^f00983]; and

(b) explain the grounds for believing that the offence has been committed.

(5) In relation to the material sought, the application must explain the grounds for believing that that material—

(a) is likely to be of substantial value to the investigation (whether by itself, or together with other material);

(b) is likely to be admissible evidence at trial for the offence under investigation; and

(6) In relation to premises which the applicant wants to be searched and can specify, the application must—

(a) specify each set of premises;

(b) in respect of each set of premises, explain the grounds for believing that material sought is on those premises; and

(i) it is not practicable to communicate with any person entitled to grant entry to the premises,

(ii) it is practicable to communicate with such a person but it is not practicable to communicate with any person entitled to grant access to the material sought,

(iii) entry to the premises will not be granted unless a warrant is produced, or

(iv) the purpose of a search may be frustrated or seriously prejudiced unless a constable arriving at the premises can secure immediate entry to them.

(7) In relation to premises which the applicant wants to be searched but at least some of which the applicant cannot specify, the application must—

(a) explain the grounds for believing that—

(i) because of the particulars of the offence under investigation it is necessary to search any premises occupied or controlled by a specified person, and

(ii) it is not reasonably practicable to specify all the premises which that person occupies or controls which might need to be searched;

(b) specify as many sets of premises as is reasonably practicable;

(c) in respect of each set of premises, whether specified or not, explain the grounds for believing that material sought is on those premises; and

(d) in respect of each specified set of premises, explain the grounds for believing that—

(i) it is not practicable to communicate with any person entitled to grant entry to the premises,

(ii) it is practicable to communicate with such a person but it is not practicable to communicate with any person entitled to grant access to the material sought,

(iii) entry to the premises will not be granted unless a warrant is produced, or

(iv) the purpose of a search may be frustrated or seriously prejudiced unless a constable arriving at the premises can secure immediate entry to them.

(8) In relation to any set of premises which the applicant wants to be searched on more than one occasion, the application must—

(a) explain why it is necessary to search on more than one occasion in order to achieve the purpose for which the applicant wants the court to issue the warrant; and

(b) specify any proposed maximum number of occasions.

(9) In relation to any set of premises which the applicant wants to be searched by the officers executing the warrant with other persons authorised by the court, the application must—

(a) identify those other persons, by function or description; and

(b) explain why those persons are required.

(10) The application must disclose anything known or reported to the applicant that might reasonably be considered capable of undermining any of the grounds of the application.

(11) Where the application includes information that the applicant thinks should be supplied only to the court, the applicant may—

(a) set out that information in a separate document, marked accordingly; and

(b) in that document, explain why the applicant thinks that that information ought not to be supplied to anyone other than the court.

(12) The application must include—

(a) a declaration by the applicant that to the best of the applicant’s knowledge and belief—

(i) the application discloses all the information that is material to what the court must decide, including anything that might reasonably be considered capable of undermining any of the grounds of the application, and

(ii) the content of the application is true; and

(b) a declaration by an officer senior to the applicant that the senior officer has reviewed and authorised the application.

(13) The application must attach a draft warrant or warrants in the terms proposed by the applicant.

[Note. The Practice Direction sets out forms of application and warrant for use in connection with this rule.

Application for warrant under section 2 of the Criminal Justice Act 1987

47.31

(1) This rule applies where an applicant wants a magistrates’ court to issue a warrant or warrants under section 2 of the Criminal Justice Act 1987.

(2) The applicant must—

(a) apply in writing;

(b) serve the application on—

(i) the court officer, or

(ii) if the court office is closed, the court;

(i) to read and prepare for the application, and

(ii) for the hearing of the application; and

(d) tell the court when the applicant expects any warrant issued to be executed.

(3) The application must—

(a) describe the investigation being conducted by the Director of the Serious Fraud Office and include—

(i) an explanation of what is alleged and why, and

(ii) a chronology of relevant events;

(b) specify the document, documents or description of documents sought by the applicant (and see paragraphs (4) and (5)); and

(4) In relation to each document or description of documents sought, the application must—

(a) explain the grounds for believing that each such document—

(i) relates to a matter relevant to the investigation, and

(ii) could not be withheld from disclosure or production on grounds of legal professional privilege; and

(b) explain the grounds for believing that—

(i) a person has failed to comply with a notice by the Director to produce the document or documents,

(ii) it is not practicable to serve such a notice, or

(iii) the service of such a notice might seriously impede the investigation.

(5) In relation to any document or description of documents which the applicant wants to be preserved but not seized under a warrant, the application must—

(a) specify the steps for which the applicant wants the court’s authority in order to preserve and prevent interference with the document or documents; and

(b) explain why such steps are necessary.

(6) In respect of each set of premises which the applicant wants to be searched, the application must explain the grounds for believing that a document or description of documents sought by the applicant is on those premises.

(7) If the court so directs, the applicant must make available to the court material on which is based the information given under paragraph (3).

(8) The application must disclose anything known or reported to the applicant that might reasonably be considered capable of undermining any of the grounds of the application.

(9) Where the application includes information that the applicant thinks should be supplied only to the court, the applicant may—

(a) set out that information in a separate document, marked accordingly; and

(b) in that document, explain why the applicant thinks that that information ought not to be supplied to anyone other than the court.

(10) The application must include—

(a) a declaration by the applicant that to the best of the applicant’s knowledge and belief—

(i) the application discloses all the information that is material to what the court must decide, including anything that might reasonably be considered capable of undermining any of the grounds of the application, and

(ii) the content of the application is true; and

(b) a declaration by an officer senior to the applicant that the senior officer has reviewed and authorised the application.

(11) The application must attach a draft warrant or warrants in the terms proposed by the applicant.

[Note. The Practice Direction sets out forms of application and warrant for use in connection with this rule.

Application for warrant under another power to which sections 15 and 16 of the Police and Criminal Evidence Act 1984 apply

47.32

(1) This rule applies where—

(a) an applicant wants a magistrates’ court to issue a warrant or warrants under a power to which sections 15 and 16 of the Police and Criminal Evidence Act 1984 apply; and

(b) neither rule 47.30 nor rule 47.31 applies.

(2) The applicant must—

(a) apply in writing;

(b) serve the application on—

(i) the court officer, or

(ii) if the court office is closed, the court;

(i) to read and prepare for the application, and

(ii) for the hearing of the application; and

(d) tell the court when the applicant expects any warrant issued to be executed.

(3) The application must—

(a) state the legislation which allows the court to issue the warrant (in this rule, described as ‘the main search power’; and see paragraph (4));

(b) so far as practicable, identify the articles or persons sought (and see paragraph (5));

(d) state whether the applicant wants the premises to be searched on more than one occasion (and see paragraph (8)); and

(e) state whether the applicant wants other persons to accompany the officers executing the warrant or warrants (and see paragraph (9)).

(4) The application must—

(a) include or attach the terms of the main search power; and

(b) explain how the circumstances satisfy any criteria prescribed by the main search power for making the application.

(5) In relation to the articles or persons sought, the application must explain how they satisfy any criteria prescribed by the main search power about such articles or persons.

(6) In relation to premises which the applicant wants to be searched and can specify, the application must—

(a) specify each set of premises; and

(b) in respect of each, explain how the circumstances satisfy any criteria prescribed by the main search power—

(i) for thinking that the articles or persons sought are on those premises, and

(ii) for asserting that the court can exercise its power to authorise the search of those premises.

(7) In relation to premises which the applicant wants to be searched but at least some of which the applicant cannot specify, the application must—

(a) explain how the main search power allows the court to authorise such searching;

(b) specify the person who occupies or controls such premises;

(d) explain why—

(i) it is necessary to search more premises than those specified, and

(ii) it is not reasonably practicable to specify all the premises which the applicant wants to be searched;

(e) in respect of each set of premises, whether specified or not, explain how the circumstances satisfy any criteria prescribed by the main search power for thinking that the articles or persons sought are on those premises; and

(f) in respect of each specified set of premises, explain how the circumstances satisfy any criteria prescribed by the main search power for asserting that the court can exercise its power to authorise the search of those premises.

(8) In relation to any set of premises which the applicant wants to be searched on more than one occasion, the application must—

(a) explain how the main search power allows the court to authorise such searching;

(b) explain why the applicant wants the premises to be searched more than once; and

(9) In relation to any set of premises which the applicant wants to be searched by the officers executing the warrant with other persons authorised by the court, the application must—

(a) identify those other persons, by function or description; and

(b) explain why those persons are required.

(10) The application must disclose anything known or reported to the applicant that might reasonably be considered capable of undermining any of the grounds of the application.

(11) Where the application includes information that the applicant thinks should be supplied only to the court, the applicant may—

(a) set out that information in a separate document, marked accordingly; and

(b) in that document, explain why the applicant thinks that that information ought not to be supplied to anyone other than the court.

(12) The application must include—

(a) a declaration by the applicant that to the best of the applicant’s knowledge and belief—

(i) the application discloses all the information that is material to what the court must decide, including anything that might reasonably be considered capable of undermining any of the grounds of the application, and

(ii) the content of the application is true; and

(b) a declaration by an officer senior to the applicant that the senior officer has reviewed and authorised the application.

(13) The application must attach a draft warrant or warrants in the terms proposed by the applicant.

[Note. The Practice Direction sets out forms of application and warrant for use in connection with this rule.

Information to be included in a warrant

47.33

(1) A warrant must identify—

(a) the person or description of persons by whom it may be executed;

(b) any person who may accompany a person executing the warrant;

(d) the legislation under which it was issued;

(e) the name of the applicant;

(f) the court that issued it, unless that is otherwise recorded by the court officer;

(g) the court office for the court that issued it; and

(h) the date on which it was issued.

(2) A warrant must specify—

(a) the premises to be searched, where the application specified premises;

(b) the person in occupation or control of premises to be searched, where the application specified such a person; and

(3) A warrant must include, by signature, initial, or otherwise, an indication that it has been approved by the court that issued it.

(4) Where a warrant comprises more than a single page, each page must include such an indication.

(5) A copy of a warrant must include a prominent certificate that it is such a copy.

[Note. See section 16 of the Police and Criminal Evidence Act 1984.]

SECTION 8: ORDERS FOR THE RETENTION OF FINGERPRINTS, ETC.

[Note. Rule 47.4 (Court’s power to vary requirements under this Part) and rule 47.5 (Documents served on the court officer) also apply.]

Exercise of court's powers

47.34

(1) The court must determine an application under rule 47.35, and an appeal under rule 47.36—

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

(b) in the presence of the applicant or appellant.

(2) The court must not determine such an application or appeal unless any person served under those rules—

(a) is present; or

(b) has had an opportunity—

(i) to attend, or

(ii) to make representations.

Application to extend retention period

47.35

(1) This rule applies where a magistrates’ court can make an order extending the period for which there may be retained material consisting of—

(a) fingerprints taken from a person—

(i) under a power conferred by Part V of the Police and Criminal Evidence Act 1984[^f00989],

(ii) with that person’s consent, in connection with the investigation of an offence by the police, or

(iii) under a power conferred by Schedule 8 to the Terrorism Act 2000[^f00990] in relation to a person detained under section 41 of that Act;

(b) a DNA profile derived from a DNA sample so taken; or

(2) A chief officer of police who wants the court to make such an order must—

(a) apply in writing—

(i) within the period of 3 months ending on the last day of the retention period, where the application relates to fingerprints or a DNA profile, or

(ii) before the expiry of the retention period, where the application relates to a sample;

(b) in the application—

(i) identify the material,

(ii) state when the retention period expires,

(iii) give details of any previous such application relating to the material, and

(iv) outline the circumstances in which the material was acquired;

(d) serve the application on the person from whom the material was taken, where—

(i) the application relates to fingerprints or a DNA profile, or

(ii) the application is for the renewal of an order extending the retention period for a sample.

(3) An application to extend the retention period for fingerprints or a DNA profile must explain why that period should be extended.

(4) An application to extend the retention period for a sample must explain why, having regard to the nature and complexity of other material that is evidence in relation to the offence, the sample is likely to be needed in any proceedings for the offence for the purposes of—

(a) disclosure to, or use by, a defendant; or

(b) responding to any challenge by a defendant in respect of the admissibility of material that is evidence on which the prosecution proposes to rely.

(5) On an application to extend the retention period for fingerprints or a DNA profile, the applicant must serve notice of the court’s decision on any respondent where—

(a) the court makes the order sought; and

(b) the respondent was absent when it was made.

[Note. See rule 47.1(6)(a). The powers to which rule 47.35 applies may be exercised only by a District Judge (Magistrates’ Courts).

Appeal

47.36

(1) This rule applies where, under rule 47.35, a magistrates’ court determines an application relating to fingerprints or a DNA profile and—

(a) the person from whom the material was taken wants to appeal to the Crown Court against an order extending the retention period; or

(b) a chief officer of police wants to appeal to the Crown Court against a refusal to make such an order.

(2) The appellant must—

(a) serve an appeal notice—

(i) on the Crown Court officer and on the other party, and

(ii) not more than 21 days after the magistrates’ court’s decision, or, if applicable, service of notice under rule 47.35(5); and

(b) in the appeal notice, explain, as appropriate, why the retention period should, or should not, be extended.

(3) Rule 34.11 (Constitution of the Crown Court) applies on such an appeal.

[Note. Under section 63F(10) of the Police and Criminal Evidence Act 1984, and under paragraph 20B(8) of Schedule 8 to the Terrorism Act 2000, the person from whom fingerprints were taken, or from whom a DNA profile derives, may appeal to the Crown Court against an order extending the retention period; and a chief officer of police may appeal to the Crown Court against the refusal of such an order.]

PART 48 — CONTEMPT OF COURT

Contents of this Part

General rules
When this Part applies	rule 48.1
Exercise of court's power to deal with contempt of court	rule 48.2
Notice of suspension of imprisonment by Court of Appeal or Crown Court	rule 48.3
Application to discharge an order for imprisonment	rule 48.4

Contempt of court by obstruction, disruption, etc.
Initial procedure on obstruction, disruption, etc.	rule 48.5
Review after temporary detention	rule 48.6
Postponement of enquiry	rule 48.7
Procedure on enquiry	rule 48.8

Contempt of court by failure to comply with court order, etc.
Initial procedure on failure to comply with court order, etc.	rule 48.9
Procedure on hearing	rule 48.10
Introduction of written witness statement or other hearsay	rule 48.11
Content of written witness statement	rule 48.12
Content of notice of other hearsay	rule 48.13
Cross-examination of maker of written witness statement or other hearsay	rule 48.14
Credibility and consistency of maker of written witness statement or other hearsay	rule 48.15
Magistrates' courts' powers to adjourn, etc.	rule 48.16
Court's power to vary requirements	rule 48.17

GENERAL RULES

When this Part applies

48.1

(1) This Part applies where the court can deal with a person for conduct—

(a) in contempt of court; or

(b) in contravention of the legislation to which rules 48.5 and 48.9 refer.

(2) In this Part, ‘respondent’ means any such person.

[Note. For the court’s powers to punish for contempt of court, see the notes to rules 48.5 and 48.9.]

Exercise of court's power to deal with contempt of court

48.2

(1) The court must determine at a hearing—

(a) an enquiry under rule 48.8;

(b) an allegation under rule 48.9.

(2) The court must not proceed in the respondent’s absence unless—

(a) the respondent’s behaviour makes it impracticable to proceed otherwise; or

(b) the respondent has had at least 14 days’ notice of the hearing, or was present when it was arranged.

(3) If the court hears part of an enquiry or allegation in private, it must announce at a hearing in public—

(a) the respondent’s name;

(b) in general terms, the nature of any conduct that the respondent admits, or the court finds proved; and

Notice of suspension of imprisonment by Court of Appeal or Crown Court

48.3

(1) This rule applies where—

(a) the Court of Appeal or the Crown Court suspends an order of imprisonment for contempt of court; and

(b) the respondent is absent when the court does so.

(2) The respondent must be served with notice of the terms of the court’s order—

(a) by any applicant under rule 48.9; or

(b) by the court officer, in any other case.

[Note. By reason of sections 15 and 45 of the Senior Courts Act 1981[^f00995], the Court of Appeal and the Crown Court each has an inherent power to suspend imprisonment for contempt of court, on conditions, or for a period, or both.]

Application to discharge an order for imprisonment

48.4

(1) This rule applies where the court can discharge an order for a respondent’s imprisonment for contempt of court.

(2) A respondent who wants the court to discharge such an order must—

(a) apply in writing, unless the court otherwise directs, and serve any written application on—

(i) the court officer, and

(ii) any applicant under rule 48.9 on whose application the respondent was imprisoned;

(b) in the application—

(i) explain why it is appropriate for the order for imprisonment to be discharged, and

(ii) give details of any appeal, and its outcome; and

[Note. By reason of sections 15 and 45 of the Senior Courts Act 1981, the Court of Appeal and the Crown Court each has an inherent power to discharge an order for a respondent’s imprisonment for contempt of court in failing to comply with a court order.

CONTEMPT OF COURT BY OBSTRUCTION, DISRUPTION, ETC.

Initial procedure on obstruction, disruption, etc.

48.5

(1) This rule applies where the court observes, or someone reports to the court—

(a) in the Court of Appeal or the Crown Court, obstructive, disruptive, insulting or intimidating conduct, in the courtroom or in its vicinity, or otherwise immediately affecting the proceedings;

(b) in the Crown Court, a contravention of—

(i) section 3 of the Criminal Procedure (Attendance of Witnesses) Act 1965[^f00998] (disobeying a witness summons);

(ii) section 20 of the Juries Act 1974[^f00999] (disobeying a jury summons);

(iii) section 8 of the Contempt of Court Act 1981[^f01000] (obtaining details of a jury’s deliberations, etc.);

(i) section 97(4) of the Magistrates’ Courts Act 1980 (refusing to give evidence), or

(ii) section 12 of the Contempt of Court Act 1981[^f01001] (insulting or interrupting the court, etc.);

(d) a contravention of section 9 of the Contempt of Court Act 1981[^f01002] (without the court’s permission, recording the proceedings, etc.);

(e) any other conduct with which the court can deal as, or as if it were, a criminal contempt of court, except failure to surrender to bail under section 6 of the Bail Act 1976[^f01003].

(2) Unless the respondent’s behaviour makes it impracticable to do so, the court must—

(a) explain, in terms the respondent can understand (with help, if necessary)—

(i) the conduct that is in question,

(ii) that the court can impose imprisonment, or a fine, or both, for such conduct,

(iii) (where relevant) that the court has power to order the respondent’s immediate temporary detention, if in the court’s opinion that is required,

(iv) that the respondent may explain the conduct,

(v) that the respondent may apologise, if he or she so wishes, and that this may persuade the court to take no further action, and

(vi) that the respondent may take legal advice; and

(b) allow the respondent a reasonable opportunity to reflect, take advice, explain and, if he or she so wishes, apologise.

(3) The court may then—

(a) take no further action in respect of that conduct;

(b) enquire into the conduct there and then; or

[Note. The conduct to which this rule applies is sometimes described as ‘criminal’ contempt of court.

Review after temporary detention

48.6

(1) This rule applies in a case in which the court has ordered the respondent’s immediate temporary detention for conduct to which rule 48.5 applies.

(2) The court must review the case—

(a) if a magistrates’ court, later the same day;

(b) if the Court of Appeal or the Crown Court, no later than the next business day.

(3) On the review, the court must—

(a) unless the respondent is absent, repeat the explanations required by rule 48.5(2)(a); and

(b) allow the respondent a reasonable opportunity to reflect, take advice, explain and, if he or she so wishes, apologise.

(4) The court may then—

(a) take no further action in respect of the conduct;

(b) if a magistrates’ court, enquire into the conduct there and then; or

(i) enquire into the conduct there and then, or

(ii) postpone the enquiry, and order the respondent’s release from such detention in the meantime.

Postponement of enquiry

48.7

(1) This rule applies where the Court of Appeal or the Crown Court postpones the enquiry.

(2) The court must arrange for the preparation of a written statement containing such particulars of the conduct in question as to make clear what the respondent appears to have done.

(3) The court officer must serve on the respondent—

(a) that written statement;

(b) notice of where and when the postponed enquiry will take place; and

(i) reminds the respondent that the court can impose imprisonment, or a fine, or both, for contempt of court, and

(ii) warns the respondent that the court may pursue the postponed enquiry in the respondent’s absence, if the respondent does not attend.

Procedure on enquiry

48.8

(1) At an enquiry, the court must—

(a) ensure that the respondent understands (with help, if necessary) what is alleged, if the enquiry has been postponed from a previous occasion;

(b) explain what the procedure at the enquiry will be; and

(2) If the respondent admits the conduct, the court need not receive evidence.

(3) If the respondent does not admit the conduct, the court must consider—

(a) any statement served under rule 48.7;

(b) any other evidence of the conduct;

(d) any representations by the respondent about the conduct.

(4) If the respondent admits the conduct, or the court finds it proved, the court must—

(a) before imposing any punishment for contempt of court, give the respondent an opportunity to make representations relevant to punishment;

(b) explain, in terms the respondent can understand (with help, if necessary)—

(i) the reasons for its decision, including its findings of fact, and

(ii) the punishment it imposes, and its effect; and

(5) The court that conducts an enquiry—

(a) need not include the same member or members as the court that observed the conduct; but

(b) may do so, unless that would be unfair to the respondent.

CONTEMPT OF COURT BY FAILURE TO COMPLY WITH COURT ORDER, ETC.

Initial procedure on failure to comply with court order, etc.

48.9

(1) This rule applies where—

(a) a party, or other person directly affected, alleges—

(i) in the Crown Court, a failure to comply with an order to which applies rule 33.70 (compliance order, restraint order or ancillary order), rule 47.13 (certain investigation orders under the Terrorism Act 2000[^f01011]) or rule 47.22 (certain investigation orders under the Proceeds of Crime Act 2002[^f01012]),

(ii) in the Court of Appeal or the Crown Court, any other conduct with which that court can deal as a civil contempt of court, or

(iii) in the Crown Court or a magistrates’ court, unauthorised use of disclosed prosecution material under section 17 of the Criminal Procedure and Investigations Act 1996[^f01013];

(b) the court deals on its own initiative with conduct to which paragraph (1)(a) applies.

(2) Such a party or person must—

(a) apply in writing and serve the application on the court officer; and

(b) serve on the respondent—

(i) the application, and

(ii) notice of where and when the court will consider the allegation (not less than 14 days after service).

(3) The application must—

(a) identify the respondent;

(b) explain that it is an application for the respondent to be dealt with for contempt of court;

(d) include a notice warning the respondent that the court—

(i) can impose imprisonment, or a fine, or both, for contempt of court, and

(ii) may deal with the application in the respondent’s absence, if the respondent does not attend the hearing.

(4) A court which acts on its own initiative under paragraph (1)(b) must—

(a) arrange for the preparation of a written statement containing the same information as an application; and

(b) arrange for the service on the respondent of—

(i) that written statement, and

(ii) notice of where and when the court will consider the allegation (not less than 14 days after service).

[Note. The conduct to which this rule applies is sometimes described as ‘civil’ contempt of court.

Procedure on hearing

48.10

(1) At the hearing of an allegation under rule 48.9, the court must—

(a) ensure that the respondent understands (with help, if necessary) what is alleged;

(b) explain what the procedure at the hearing will be; and

(2) If the respondent admits the conduct, the court need not receive evidence.

(3) If the respondent does not admit the conduct, the court must consider—

(a) the application or written statement served under rule 48.9;

(b) any other evidence of the conduct;

(d) any representations by the respondent about the conduct.

(4) If the respondent admits the conduct, or the court finds it proved, the court must—

(a) before imposing any punishment for contempt of court, give the respondent an opportunity to make representations relevant to punishment;

(b) explain, in terms the respondent can understand (with help, if necessary)—

(i) the reasons for its decision, including its findings of fact, and

(ii) the punishment it imposes, and its effect; and

Introduction of written witness statement or other hearsay

48.11

(1) Where rule 48.9 applies, an applicant or respondent who wants to introduce in evidence the written statement of a witness, or other hearsay, must—

(a) serve a copy of the statement, or notice of other hearsay, on—

(i) the court officer, and

(ii) the other party; and

(b) serve the copy or notice—

(i) when serving the application under rule 48.9, in the case of an applicant, or

(ii) not more than 7 days after service of that application or of the court’s written statement, in the case of the respondent.

(2) Such service is notice of that party’s intention to introduce in evidence that written witness statement, or other hearsay, unless that party otherwise indicates when serving it.

(3) A party entitled to receive such notice may waive that entitlement.

[Note. On an application under rule 48.9, hearsay evidence is admissible under the Civil Evidence Act 1995. Section 1(2) of the 1995 Act[^f01016]defines hearsay as meaning ‘a statement made otherwise than by a person while giving oral evidence in the proceedings which is tendered as evidence of the matters stated’. Section 13 of the Act[^f01017]defines a statement as meaning ‘any representation of fact or opinion, however made’.

Content of written witness statement

48.12

(1) This rule applies to a written witness statement served under rule 48.11.

(2) Such a written witness statement must contain a declaration by the person making it that it is true to the best of that person’s knowledge and belief.

[Note. By reason of sections 15 and 45 of the Senior Courts Act 1981[^f01019], the Court of Appeal and the Crown Court each has an inherent power to imprison (for a maximum of 2 years), or fine (to an unlimited amount), or both, for contempt of court a person who, in a written witness statement to which this rule applies, makes, or causes to be made, a false statement without an honest belief in its truth. See also section 14 of the Contempt of Court Act 1981[^f01020].]

Content of notice of other hearsay

48.13

(1) This rule applies to a notice of hearsay, other than a written witness statement, served under rule 48.11.

(2) Such a notice must—

(a) set out the evidence, or attach the document that contains it; and

(b) identify the person who made the statement that is hearsay.

Cross-examination of maker of written witness statement or other hearsay

48.14

(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; and

(b) serve the application on—

(i) the court officer, and

(ii) the party who served the hearsay.

(3) A respondent who wants to cross-examine such a person must apply to do so not more than 7days after service of the hearsay by the applicant.

(4) An applicant who wants to cross-examine such a person must apply to do so not more than 3days after service of the hearsay by the respondent.

(5) The court—

(a) may decide an application under this rule without a hearing; but

(b) must not dismiss such an application unless the person making it has had an opportunity to make representations at a hearing.

[Note. See also section 3 of the Civil Evidence Act 1995[^f01021].]

Credibility and consistency of maker of written witness statement or other hearsay

48.15

(1) This rule applies where a party wants to challenge the credibility or consistency of a person who made a statement which another party wants to introduce as hearsay.

(2) The party who wants to challenge the credibility or consistency of that person must—

(a) serve a written notice of intention to do so on—

(i) the court officer, and

(ii) the party who served the hearsay; and

(b) in it, identify any statement or other material on which that party relies.

(3) A respondent who wants to challenge such a person’s credibility or consistency must serve such a notice not more than 7 days after service of the hearsay by the applicant.

(4) An applicant who wants to challenge such a person’s credibility or consistency must serve such a notice not more than 3 days after service of the hearsay by the respondent.

(5) The party who served the hearsay—

(a) may call that person to give oral evidence instead; and

(b) if so, must serve a notice of intention to do so on—

(i) the court officer, and

(ii) the other party

as soon as practicable after service of the notice under paragraph (2).

[Note. Section 5(2) of the Civil Evidence Act 1995[^f01022]describes the procedure for challenging the credibility of the maker of a statement of which hearsay evidence is introduced. See also section 6 of that Act[^f01023].

Magistrates' courts' powers to adjourn, etc.

48.16

(1) This rule applies where a magistrates’ court deals with unauthorised disclosure of prosecution material under sections 17 and 18 of the Criminal Procedure and Investigations Act 1996[^f01025].

(2) The sections of the Magistrates’ Courts Act 1980 listed in paragraph (3) apply as if in those sections—

(a) ‘complaint’ and ‘summons’ each referred to an application or written statement under rule 48.9;

(b) ‘complainant’ meant an applicant; and

(3) Those sections are—

(a) section 51[^f01026] (issue of summons on complaint);

(b) section 54[^f01027] (adjournment);

(d) section 97(1)[^f01029] (summons to witness);

(e) section 121(1)[^f01030] (constitution and place of sitting of court);

(f) section 123[^f01031] (defect in process).

(4) Section 127 of the 1980 Act[^f01032] (limitation of time) does not apply.

[Note. Under section 19(3) of the Criminal Procedure and Investigations Act 1996[^f01033], Criminal Procedure Rules may contain provisions equivalent to those contained in Schedule 3 to the Contempt of Court Act 1981[^f01034](which allows magistrates’ courts in cases of contempt of court to use certain powers such courts possess in other cases).]

Court's power to vary requirements

48.17

(1) The court may shorten or extend (even after it has expired) a time limit under rule 48.11, 48.14 or 48.15.

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

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

(b) explain the delay.

PART 49 — INTERNATIONAL CO-OPERATION

Contents of this Part

Notice required to accompany process served outside
the United Kingdom and translations	rule 49.1
Proof of service outside the United Kingdom	rule 49.2
Supply of copy of notice of request for assistance abroad	rule 49.3
Persons entitled to appear and take part in proceedings
before a nominated court, and exclusion of the public	rule 49.4
Record of proceedings to receive evidence
before a nominated court	rule 49.5
Interpreter for the purposes of proceedings
involving a television or telephone link	rule 49.6
Record of television link hearing before a nominated court	rule 49.7
Record of telephone link hearing before a nominated court	rule 49.8
Overseas record	rule 49.9
Overseas freezing orders	rule 49.10
Overseas forfeiture orders	rule 49.11
Overseas restraint orders	rule 49.12
Overseas confiscation orders	rule 49.13

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

49.1

(1) The notice which by virtue of section 3(4)(b) of the Crime (International Co-operation) Act 2003[^f01035] (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

49.2

(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

49.3

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

49.4

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

49.5

(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[^f01036]) 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 49.9.]

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

49.6

(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

49.7

(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 49.9.]

Record of telephone link hearing before a nominated court

49.8

(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 49.9.]

Overseas record

49.9

(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[^f01037]).

(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

49.10

(1) This rule applies where a court is nominated under section 21(1) of the Crime (International Co-operation) Act 2003[^f01038] 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.

[Note. Under sections 20, 21 and 22 of the Crime (International Co-operation) Act 2003, a court nominated by the Secretary of State must consider an order, made by a court or other authority in a country outside the United Kingdom, the purpose of which is to protect evidence in the United Kingdom which may be used in proceedings or an investigation in that other country pending the transfer of that evidence to that country. The court may decide not to give effect to such an order only if—

(a) were the person whose conduct is in question to be charged with the offence to which the order relates, a previous conviction or acquittal would entitle that person to be discharged; or

(b) giving effect to the order would be incompatible with a Convention right, within the meaning of the Human Rights Act 1998.]

Overseas forfeiture orders

49.11

(1) This rule applies where—

(a) the Crown Court can—

(i) make a restraint order under article 5 of the Criminal Justice (International Co-operation) Act 1990 (Enforcement of Overseas Forfeiture Orders) Order 2005[^f01039], or

(ii) give effect to an external forfeiture order under article 19 of that Order;

(b) the Director of Public Prosecutions or the Director of the Serious Fraud Office receives—

(i) a request for the restraint of property to which article 3 of the 2005 Order applies, or

(ii) a request to give effect to an external forfeiture order to which article 15 of the Order applies; and

(i) make such a restraint order, or

(ii) give effect to such a forfeiture order.

(2) The Director must—

(a) apply in writing;

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

(c) serve the application on the defendant and on any other person affected by the order, unless the court is satisfied that—

(i) the application is urgent, or

(ii) there are reasonable grounds for believing that to give notice of the application would cause the dissipation of the property which is the subject of the application.

(3) The application must—

(a) identify the property the subject of the application;

(b) identify the person who is or who may become the subject of such a forfeiture order;

(i) for making a restraint order, or

(ii) for giving effect to a forfeiture order;

(d) where the application is to give effect to a forfeiture order, include an application to appoint the Director as the enforcement authority; and

(e) propose the terms of the Crown Court order.

(4) If the court allows the application, it must—

(a) where it decides to make a restraint order—

(i) specify the property the subject of the order,

(ii) specify the person or persons who are prohibited from dealing with that property,

(iii) specify any exception to that prohibition, and

(iv) include any ancillary order that the court believes is appropriate to ensure that the restraint order is effective;

(b) where it decides to give effect to a forfeiture order, exercise its power to—

(i) direct the registration of the order as an order of the Crown Court,

(ii) give directions for notice of the order to be given to any person affected by it, and

(iii) appoint the applicant Director as the enforcement authority.

(5) Paragraph (6) applies where a person affected by an order, or the Director, wants the court to vary or discharge a restraint order or cancel the registration of a forfeiture order.

(6) Such a person must—

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

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

(i) the other party, and

(ii) any other person who will or may be affected;

(i) for the restraint order to be varied or discharged, or

(ii) for the registration of the forfeiture order to be cancelled;

(d) propose the terms of any variation; and

(e) ask for a hearing, if one is wanted, and explain why it is needed.

(7) The court may—

(a) consider an application

(i) at a hearing, which must be in private unless the court otherwise directs, or

(ii) without a hearing;

(b) allow an application to be made orally.

[Note. Under article 19 of the Criminal Justice (International Co-operation) Act 1990 (Enforcement of Overseas Forfeiture Orders) Order 2005, on the application of the Director of Public Prosecutions or the Director of the Serious Fraud Office the Crown Court may give effect to an order made by a court in a country outside the United Kingdom for the forfeiture and destruction, or other disposal, of any property in respect of which an offence has been committed in that country, or which was used or intended for use in connection with the commission of such an offence (described in the Order as an ‘external forfeiture order’).

Overseas restraint orders

49.12

(1) This rule applies where—

(a) the Crown Court can give effect to an overseas restraint order under regulation 10 of the Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014[^f01040];

(b) the Director of Public Prosecutions or the Director of the Serious Fraud Office receives a request from a court or authority in another European Union member State to give effect to such an order; and

(i) the certificate which accompanied the request for enforcement of the order,

(ii) a copy of the order restraining the property to which that certificate relates, and

(iii) a copy of an order confiscating the property in respect of which the restraint order was made, or an indication of when such a confiscation order is expected.

(2) On service of those documents on the court officer—

(a) the general rule is that the Crown Court must consider the order, with a view to its registration, no later than the next business day;

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

(3) The court—

(a) must not consider the order unless the Director—

(i) is present, or

(ii) has had a reasonable opportunity to make representations;

(b) subject to that, may consider the order—

(i) at a hearing, which must be in private unless the court otherwise directs, or

(ii) without a hearing.

(4) If the court decides to give effect to the order, the court must—

(a) direct its registration as an order of the Crown Court; and

(b) give directions for notice of the order to be given to any person affected by it.

(5) Paragraph (6) applies where a person affected by the order, or the Director, wants the court to cancel the registration or vary the property to which the order applies.

(6) Such a person must—

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

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

(i) the other party, and

(ii) any other person who will or may be affected;

(i) when the overseas restraint order ceased to have effect in the European Union member State in which it was made,

(ii) why continuing to give effect to that order would be impossible as a consequence of an immunity under the law of England and Wales,

(iii) why continuing to give effect to that order would be incompatible with a Convention right within the meaning of the Human Rights Act 1998,

(iv) why therefore it is appropriate for the registration to be cancelled or varied;

(d) include with the application any evidence in support;

(e) propose the terms of any variation; and

(f) ask for a hearing, if one is wanted, and explain why it is needed.

[Note. See regulations 8, 9 and 10 of the Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014.

Overseas confiscation orders

49.13

(1) This rule applies where—

(a) the Crown Court can give effect to an overseas confiscation order under regulation 15 of the Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014[^f01041];

(b) the Director of Public Prosecutions or the Director of the Serious Fraud Office receives a request from a court or authority in another European Union member State to give effect to such an order; and

(i) the certificate which accompanied the request for enforcement of the order, and

(ii) a copy of the confiscation order to which that certificate relates.

(2) The court—

(a) must not consider the order unless the Director—

(i) is present, or

(ii) has had a reasonable opportunity to make representations;

(b) subject to that, may consider the order—

(i) at a hearing, which must be in private unless the court otherwise directs, or

(ii) without a hearing.

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