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The Criminal Procedure Rules 2015

Type Statutory-Instrument

Publication 2015-07-03

Last updated 2020-10-05

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(ii) ordering the defendant to be detained in youth detention accommodation.

(6) At any hearing at which the court grants bail, the court must—

(a) tell the defendant where and when to surrender to custody; or

(b) arrange for the court officer to give the defendant, as soon as practicable, notice of where and when to surrender to custody.

[Note. See section 5 of the Bail Act 1976 and sections 93(7) and 102(4) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012[^f00245].

Duty of justices' legal adviser

14.3

(1) This rule applies—

(a) only in a magistrates’ court; and

(b) unless the court—

(i) includes a District Judge (Magistrates’ Courts), and

(ii) otherwise directs.

(2) A justices’ legal adviser must—

(a) assist an unrepresented defendant;

(b) give the court such advice as is required to enable it to exercise its powers;

(c) if required, attend the members of the court outside the courtroom to give such advice, but inform the parties of any advice so given.

[Note. For the functions of a justices’ legal adviser, see sections 28 and 29 of the Courts Act 2003[^f00248].]

General duties of court officer

14.4

(1) The court officer must arrange for a note or other record to be made of—

(a) the parties’ representations about bail; and

(b) the court’s reasons for a decision—

(i) to withhold bail, or to impose or vary a bail condition, or

(ii) to grant bail, where the prosecutor opposed the grant.

(2) The court officer must serve notice of a decision about bail on—

(a) the defendant (but, in the Crown Court, only where the defendant’s legal representative asks for such a notice, or where the defendant has no legal representative);

(b) the prosecutor (but only where the court granted bail, the prosecutor opposed the grant, and the prosecutor asks for such a notice);

(d) a surety who is directly affected by the decision;

(e) the defendant’s custodian, where the defendant is in custody and the decision requires the custodian—

(i) to release the defendant (or will do so, if a requirement ordered by the court is met), or

(ii) to transfer the defendant to the custody of another custodian;

(f) the court officer for any other court at which the defendant is required by that decision to surrender to custody.

(3) Where the court postpones the date on which a defendant who is on bail must surrender to custody, the court officer must serve notice of the postponed date on—

(a) the defendant; and

(b) any surety.

(4) Where a magistrates’ court withholds bail in a case to which section 5(6A) of the Bail Act 1976[^f00249] applies (remand in custody after hearing full argument on an application for bail), the court officer must serve on the defendant a certificate that the court heard full argument.

[Note. See section 5 of the Bail Act 1976[^f00250]; section 43 of the Magistrates’ Courts Act 1980[^f00251]; and section 52 of the Mental Health Act 1983[^f00252].]

BAIL

Prosecutor's representations about bail

14.5

(1) This rule applies whenever the court can grant or withhold bail.

(2) The prosecutor must provide the court with all the information in the prosecutor’s possession which is material to what the court must decide.

(3) A prosecutor who opposes the grant of bail must specify—

(a) each exception to the general right to bail on which the prosecutor relies; and

(b) each consideration that the prosecutor thinks relevant.

(4) A prosecutor who wants the court to impose a condition on any grant of bail must—

(a) specify each condition proposed; and

(b) explain what purpose would be served by such a condition.

[Note. A summary of the general entitlement to bail and of the exceptions to that entitlement is at the end of this Part.]

Reconsideration of police bail by magistrates' court

14.6

(1) This rule applies where a party wants a magistrates’ court to reconsider a bail decision by a police officer.

(2) An application under this rule must be made to—

(a) the magistrates’ court to whose custody the defendant is under a duty to surrender, if any; or

(b) any magistrates’ court acting for the police officer’s local justice area, in any other case.

(3) The applicant party must—

(a) apply in writing; and

(b) serve the application on—

(i) the court officer,

(ii) the other party, and

(iii) any surety affected or proposed.

(4) The application must—

(a) specify—

(i) the decision that the applicant wants the court to make,

(ii) each offence charged, or for which the defendant was arrested, and

(iii) the police bail decision to be reconsidered and the reasons given for it;

(b) explain, as appropriate—

(i) why the court should grant bail itself, or withdraw it, or impose or vary a condition, and

(ii) if the applicant is the prosecutor, what material information has become available since the police bail decision was made;

(d) if the applicant wants an earlier hearing than paragraph (7) requires, ask for that, and explain why it is needed.

(5) A prosecutor who applies under this rule must serve on the defendant, with the application, notice that the court has power to withdraw bail and, if the defendant is absent when the court makes its decision, order the defendant’s arrest.

(6) A party who opposes an application must—

(a) so notify the court officer and the applicant at once; and

(b) serve on each notice of the reasons for opposition.

(7) Unless the court otherwise directs, the court officer must arrange for the court to hear the application as soon as practicable and in any event—

(a) if it is an application to withdraw bail, no later than the second business day after it was served;

(b) in any other case, no later than the fifth business day after it was served.

(8) The court may—

(a) vary or waive a time limit under this rule;

(b) allow an application to be in a different form to one set out in the Practice Direction;

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

Notice of application to consider bail

14.7

(1) This rule applies where—

(a) in a magistrates’ court—

(i) a prosecutor wants the court to withdraw bail granted by the court, or to impose or vary a condition of such bail, or

(ii) a defendant wants the court to reconsider such bail before the next hearing in the case;

(b) in the Crown Court—

(i) a party wants the court to grant bail that has been withheld, or to withdraw bail that has been granted, or to impose a new bail condition or to vary a present one, or

(ii) a prosecutor wants the court to consider whether to grant or withhold bail, or impose or vary a condition of bail, under section 88 or section 89 of the Criminal Justice Act 2003[^f00258] (bail and custody in connection with an intended application to the Court of Appeal to which Part 27 (Retrial after acquittal) applies).

(2) Such a party must—

(a) apply in writing;

(b) serve the application on—

(i) the court officer,

(ii) the other party, and

(iii) any surety affected or proposed; and

(c) serve the application not less than 2 business days before any hearing in the case at which the applicant wants the court to consider it, if such a hearing is already due.

(3) The application must—

(a) specify—

(i) the decision that the applicant wants the court to make,

(ii) each offence charged, and

(iii) each relevant previous bail decision and the reasons given for each;

(b) if the applicant is a defendant, explain—

(i) as appropriate, why the court should not withhold bail, or why it should vary a condition, and

(ii) what further information or legal argument, if any, has become available since the most recent previous bail decision was made;

(i) as appropriate, why the court should withdraw bail, or impose or vary a condition, and

(ii) what material information has become available since the most recent previous bail decision was made;

(d) propose the terms of any suggested condition of bail; and

(e) if the applicant wants an earlier hearing than paragraph (6) requires, ask for that, and explain why it is needed.

(4) A prosecutor who applies under this rule must serve on the defendant, with the application, notice that the court has power to withdraw bail and, if the defendant is absent when the court makes its decision, order the defendant’s arrest.

(5) A party who opposes an application must—

(a) so notify the court officer and the applicant at once; and

(b) serve on each notice of the reasons for opposition.

(6) Unless the court otherwise directs, the court officer must arrange for the court to hear the application as soon as practicable and in any event—

(a) if it is an application to grant or withdraw bail, no later than the second business day after it was served;

(b) if it is an application to impose or vary a condition, no later than the fifth business day after it was served.

(7) The court may—

(a) vary or waive a time limit under this rule;

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

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

Defendant's application or appeal to the Crown Court after magistrates' court bail decision

14.8

(1) This rule applies where a defendant wants to—

(a) apply to the Crown Court for bail after a magistrates’ court has withheld bail; or

(b) appeal to the Crown Court after a magistrates’ court has refused to vary a bail condition as the defendant wants.

(2) The defendant must—

(a) apply to the Crown Court in writing as soon as practicable after the magistrates’ court’s decision; and

(b) serve the application on—

(i) the Crown Court officer,

(ii) the magistrates’ court officer,

(iii) the prosecutor, and

(iv) any surety affected or proposed.

(3) The application must—

(a) specify—

(i) the decision that the applicant wants the Crown Court to make, and

(ii) each offence charged;

(b) explain—

(i) as appropriate, why the Crown Court should not withhold bail, or why it should vary the condition under appeal, and

(ii) what further information or legal argument, if any, has become available since the magistrates’ court’s decision;

(d) if the applicant wants an earlier hearing than paragraph (6) requires, ask for that, and explain why it is needed; and

(e) on an application for bail, attach a copy of the certificate of full argument served on the defendant under rule 14.4(4).

(4) The magistrates’ court officer must as soon as practicable serve on the Crown Court officer—

(a) a copy of the note or record made under rule 14.4(1) in connection with the magistrates’ court’s decision; and

(b) the date of the next hearing, if any, in the magistrates’ court.

(5) A prosecutor who opposes the application must—

(a) so notify the Crown Court officer and the defendant at once; and

(b) serve on each notice of the reasons for opposition.

(6) Unless the Crown Court otherwise directs, the court officer must arrange for the court to hear the application or appeal as soon as practicable and in any event no later than the business day after it was served.

(7) The Crown Court may vary a time limit under this rule.

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

Prosecutor's appeal against grant of bail

14.9

(1) This rule applies where a prosecutor wants to appeal—

(a) to the Crown Court against a grant of bail by a magistrates’ court, in a case in which the defendant has been charged with, or convicted of, an offence punishable with imprisonment; or

(b) to the High Court against a grant of bail—

(i) by a magistrates’ court, in an extradition case, or

(ii) by the Crown Court, in a case in which the defendant has been charged with, or convicted of, an offence punishable with imprisonment (but not in a case in which the Crown Court granted bail on an appeal to which paragraph (1)(a) applies).

(2) The prosecutor must tell the court which has granted bail of the decision to appeal—

(a) at the end of the hearing during which the court granted bail; and

(b) before the defendant is released on bail.

(3) The court which has granted bail must exercise its power to remand the defendant in custody pending determination of the appeal.

(4) The prosecutor must serve an appeal notice—

(a) on the court officer for the court which has granted bail and on the defendant;

(b) not more than 2 hours after telling that court of the decision to appeal.

(5) The appeal notice must specify—

(a) each offence with which the defendant is charged;

(b) the decision under appeal;

(d) the grounds of appeal.

(6) On an appeal to the Crown Court, the magistrates’ court officer must, as soon as practicable, serve on the Crown Court officer—

(a) the appeal notice;

(b) a copy of the note or record made under rule 14.4(1) (record of bail decision); and

(7) If the Crown Court so directs, the Crown Court officer must arrange for the defendant to be assisted by the Official Solicitor in a case in which the defendant—

(a) has no legal representative; and

(b) asks for such assistance.

(8) On an appeal to the Crown Court, the Crown Court officer must arrange for the court to hear the appeal as soon as practicable and in any event no later than the second business day after the appeal notice was served.

(9) The prosecutor—

(a) may abandon an appeal to the Crown Court without the court’s permission, by serving a notice of abandonment, signed by or on behalf of the prosecutor, on—

(i) the defendant,

(ii) the Crown Court officer, and

(iii) the magistrates’ court officer

before the hearing of the appeal begins; but

(b) after the hearing of the appeal begins, may only abandon the appeal with the Crown Court’s permission.

(10) The court officer for the court which has granted bail must instruct the defendant’s custodian to release the defendant on the bail granted by that court, subject to any condition or conditions of bail imposed, if—

(a) the prosecutor fails to serve an appeal notice within the time to which paragraph (4) refers; or

(b) the prosecutor serves a notice of abandonment under paragraph (9).

[Note. See section 1 of the Bail (Amendment) Act 1993[^f00266]. The time limit for serving an appeal notice is prescribed by section 1(5) of the Act. It may be neither extended nor shortened.

Consideration of bail in a murder case

14.10

(1) This rule applies in a case in which—

(a) the defendant is charged with murder; and

(b) the Crown Court has not yet considered bail.

(2) The magistrates’ court officer must arrange with the Crown Court officer for the Crown Court to consider bail as soon as practicable and in any event no later than the second business day after—

(a) a magistrates’ court sends the defendant to the Crown Court for trial; or

(b) the first hearing in the magistrates’ court, if the defendant is not at once sent for trial.

[Note. See section 115 of the Coroners and Justice Act 2009[^f00267].]

Condition of residence

14.11

(1) The defendant must notify the prosecutor of the address at which the defendant will live and sleep if released on bail with a condition of residence—

(a) as soon as practicable after the institution of proceedings, unless already done; and

(b) as soon as practicable after any change of that address.

(2) The prosecutor must help the court to assess the suitability of an address proposed as a condition of residence.

Electronic monitoring requirements

14.12

(1) This rule applies where the court imposes electronic monitoring requirements, where available, as a condition of bail.

(2) The court officer must—

(a) inform the person responsible for the monitoring (‘the monitor’) of—

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

(ii) each offence with which the defendant is charged,

(iii) details of the place at which the defendant’s presence must be monitored,

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

(v) if fixed, the date on which the defendant must surrender to custody;

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

(i) variation or termination of the electronic monitoring requirements, or

(ii) fixing or variation of the date on which the defendant must surrender to custody.

[Note. Under section 3(6ZAA) of the Bail Act 1976[^f00268], the conditions of bail that the court may impose include requirements for the electronic monitoring of a defendant’s compliance with other bail conditions, for example a curfew. Sections 3AA and 3AB of the 1976 Act[^f00269]set out conditions for imposing such requirements.

Accommodation or support requirements

14.13

(1) This rule applies where the court imposes as a condition of bail a requirement, where available, that the defendant must—

(a) reside in accommodation provided for that purpose by, or on behalf of, a public authority;

(b) receive bail support provided by, or on behalf of, a public authority.

(2) The court officer must—

(a) inform the person responsible for the provision of any such accommodation or support (‘the service provider’) of—

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

(ii) each offence with which the defendant is charged,

(iii) details of the requirement,

(iv) any other bail condition, and

(v) if fixed, the date on which the defendant must surrender to custody;

(b) inform the defendant and, where the defendant is under 16, an appropriate adult, of—

(i) the service provider’s identity and the means by which the service provider may be contacted, and

(ii) the address of any accommodation in which the defendant must live and sleep; and

(i) variation or termination of the requirement,

(ii) variation or termination of any other bail condition, and

(iii) fixing or variation of the date on which the defendant must surrender to custody.

Requirement for a surety or payment, etc.

14.14

(1) This rule applies where the court imposes as a condition of bail a requirement for—

(a) a surety;

(b) a payment;

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

(3) Unless the court otherwise directs, if any such condition or direction requires a surety to enter into a recognizance—

(a) the recognizance must specify—

(i) the amount that the surety will be required to pay if the purpose for which the recognizance is entered is not fulfilled, and

(ii) the date, or the event, upon which the recognizance will expire;

(b) the surety must enter into the recognizance in the presence of—

(i) the court officer,

(ii) the defendant’s custodian, where the defendant is in custody, or

(iii) someone acting with the authority of either; and

(i) the surety, and

(ii) as appropriate, the court officer and the defendant’s custodian.

(4) Unless the court otherwise directs, if any such condition or direction requires someone to make a payment, or surrender a document or thing—

(a) that payment, document or thing must be made or surrendered to—

(i) the court officer,

(ii) the defendant’s custodian, where the defendant is in custody, or

(iii) someone acting with the authority of either; and

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

(5) The custodian must release the defendant when each requirement ordered by the court has been met.

[Note. See also section 119 of the Magistrates’ Courts Act 1980[^f00271].]

Forfeiture of a recognizance given by a surety

14.15

(1) This rule applies where the court imposes as a condition of bail a requirement that a surety enter into a recognizance and, after the defendant is released on bail,—

(a) the defendant fails to surrender to custody as required, or

(b) it appears to the court that the surety has failed to comply with a condition or direction.

(2) The court officer must serve notice on—

(a) the surety; and

(b) each party to the decision to grant bail,

of the hearing at which the court will consider the forfeiture of the recognizance.

(3) The court must not forfeit the recognizance less than 5 business days after service of notice under paragraph (2).

[Note. If the purpose for which a recognizance is entered is not fulfilled, that recognizance may be forfeited by the court. If the court forfeits a surety’s recognizance, the sum promised by that person is then payable to the Crown. See also section 120 of the Magistrates’ Courts Act 1980[^f00272].]

Bail condition to be enforced in another European Union member State

14.16

(1) This rule applies where the court can impose as a condition of bail pending trial a requirement—

(a) with which the defendant must comply while in another European Union member State; and

(b) which that other member State can monitor and enforce.

(2) The court—

(a) must not exercise its power to impose such a requirement until the court has decided what, if any, condition or conditions of bail to impose while the defendant is in England and Wales;

(b) subject to that, may exercise its power to make a request for the other member State to monitor and enforce that requirement.

(3) Where the court makes such a request, the court officer must—

(a) issue a certificate requesting the monitoring and enforcement of the defendant’s compliance with that requirement, in the form required by EU Council Framework Decision 2009/829/JHA;

(b) serve on the relevant authority of the other member State—

(i) the court’s decision or a certified copy of that decision,

(ii) the certificate, and

(iii) a copy of the certificate translated into an official language of the other member State, unless English is such a language or the other member State has declared that it will accept a certificate in English; and

(i) any request for further information returned by the competent authority in the other member State, and

(ii) that authority’s decision.

(4) Where the competent authority in the other member State agrees to monitor and enforce the requirement—

(a) the court—

(i) may exercise its power to withdraw the request (where it can), but

(ii) whether or not it does so, must continue to exercise the powers to which this Part applies in accordance with the rules in this Part;

(b) the court officer must immediately serve notice on that authority if—

(i) legal proceedings are brought in relation to the requirement being monitored and enforced

(ii) the court decides to vary or revoke that requirement, or to issue a warrant for the defendant’s arrest; and

[Note. See regulations 77 to 84 of the Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014[^f00273].

Enforcement of measure imposed in another European Union member State

14.17

(1) This rule applies where the Lord Chancellor serves on the court officer a certificate requesting the monitoring and enforcement of a defendant’s compliance with a supervision measure imposed by an authority in another European Union member State.

(2) The court officer must arrange for the court to consider the request—

(a) as a general rule—

(i) within 20 business days of the date on which the Lord Chancellor received it from the requesting authority, or

(ii) within 40 business days of that date, if legal proceedings in relation to the supervision measure are brought within the first 20 business days;

(b) exceptionally, later than that, but in such a case the court officer must immediately serve on the requesting authority—

(i) an explanation for the delay, and

(ii) an indication of when the court’s decision is expected.

(3) On consideration of the request by the court, the court officer must—

(a) without delay serve on the requesting authority—

(i) notice of any further information required by the court, and

(ii) subject to any such requirement and any response, notice of the court’s decision; and

(b) where the court agrees to monitor the supervision measure, serve notice of the court’s decision on any supervisor specified by the court.

(4) Where the court agrees to monitor the supervision measure—

(a) the court officer must immediately serve notice on the requesting authority if there is reported to the court—

(i) a breach of the measure, or

(ii) any other event that might cause the requesting authority to review its decision;

(b) the court officer must without delay serve notice on the requesting authority if—

(i) legal proceedings are brought in relation to the decision to monitor compliance with the bail condition,

(ii) there is reported to the court a change of the defendant’s residence, or

(iii) the court decides (where it can) to stop monitoring the defendant’s compliance with the measure.

[Note. See regulations 85 to 94 of the Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014.

CUSTODY TIME LIMITS

Application to extend a custody time limit

14.18

(1) This rule applies where the prosecutor gives notice of application to extend a custody time limit.

(2) The court officer must arrange for the court to hear that application as soon as practicable after the expiry of—

(a) 5 days from the giving of notice, in the Crown Court; or

(b) 2 days from the giving of notice, in a magistrates’ court.

(3) The court may shorten a time limit under this rule.

[Note. See regulation 7 of the Prosecution of Offences (Custody Time Limits) Regulations 1987[^f00274].

Appeal against custody time limit decision

14.19

(1) This rule applies where—

(a) a defendant wants to appeal to the Crown Court against a decision by a magistrates’ court to extend a custody time limit;

(b) a prosecutor wants to appeal to the Crown Court against a decision by a magistrates’ court to refuse to extend a custody time limit.

(2) The appellant must serve an appeal notice—

(a) on—

(i) the other party to the decision,

(ii) the Crown Court officer, and

(iii) the magistrates’ court officer;

(b) in a defendant’s appeal, as soon as practicable after the decision under appeal;

(i) as soon as practicable after the decision under appeal, and

(ii) before the relevant custody time limit expires.

(3) The appeal notice must specify—

(a) each offence with which the defendant is charged;

(b) the decision under appeal;

(d) on a defendant’s appeal, the date on which the relevant custody time limit would have expired but for the decision under appeal; and

(e) the grounds of appeal.

(4) The Crown Court officer must arrange for the Crown Court to hear the appeal as soon as practicable and in any event no later than the second business day after the appeal notice was served.

(5) The appellant—

(a) may abandon an appeal without the Crown Court’s permission, by serving a notice of abandonment, signed by or on behalf of the appellant, on—

(i) the other party,

(ii) the Crown Court officer, and

(iii) the magistrates’ court officer

before the hearing of the appeal begins; but

(b) after the hearing of the appeal begins, may only abandon the appeal with the Crown Court’s permission.

[Note. See section 22(7), (8), (9) of the Prosecution of Offences Act 1985[^f00277].]

PART 15 — DISCLOSURE

Contents of this Part

When this Part applies	rule 15.1
Prosecution disclosure	rule 15.2
Prosecutor's application for public interest ruling	rule 15.3
Defence disclosure	rule 15.4
Defendant's application for prosecution disclosure	rule 15.5
Review of public interest ruling	rule 15.6
Defendant's application to use disclosed material	rule 15.7
Unauthorised use of disclosed material	rule 15.8
Court's power to vary requirements under this Part	rule 15.9

When this Part applies

15.1

This Part applies—

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

(b) where Parts I and II of the Criminal Procedure and Investigations Act 1996 apply.

[Note. A summary of the disclosure requirements of the Criminal Procedure and Investigations Act 1996 is at the end of this Part.]

Prosecution disclosure

15.2

(1) This rule applies where, under section 3 of the Criminal Procedure and Investigations Act 1996[^f00285], the prosecutor—

(a) discloses prosecution material to the defendant; or

(b) serves on the defendant a written statement that there is no such material to disclose.

(2) The prosecutor must at the same time so inform the court officer.

[Note. See section 3 of the Criminal Procedure and Investigations Act 1996 and paragraph 10 of the Code of Practice accompanying the Criminal Procedure and Investigations Act 1996 (Code of Practice) Order 2015[^f00286].]

Prosecutor's application for public interest ruling

15.3

(1) This rule applies where—

(a) without a court order, the prosecutor would have to disclose material; and

(b) the prosecutor wants the court to decide whether it would be in the public interest to disclose it.

(2) The prosecutor must—

(a) apply in writing for such a decision; and

(b) serve the application on—

(i) the court officer,

(ii) any person who the prosecutor thinks would be directly affected by disclosure of the material, and

(iii) the defendant, but only to the extent that serving it on the defendant would not disclose what the prosecutor thinks ought not be disclosed.

(3) The application must—

(a) describe the material, and explain why the prosecutor thinks that—

(i) it is material that the prosecutor would have to disclose,

(ii) it would not be in the public interest to disclose that material, and

(iii) no measure such as the prosecutor’s admission of any fact, or disclosure by summary, extract or edited copy, adequately would protect both the public interest and the defendant’s right to a fair trial;

(b) omit from any part of the application that is served on the defendant anything that would disclose what the prosecutor thinks ought not be disclosed (in which case, paragraph (4) of this rule applies); and

(4) Where the prosecutor serves only part of the application on the defendant, the prosecutor must—

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

(b) in that other part, explain why the prosecutor has withheld it from the defendant.

(5) Unless already done, the court may direct the prosecutor to serve an application on—

(a) the defendant;

(b) any other person who the court considers would be directly affected by the disclosure of the material.

(6) The court must determine the application at a hearing which—

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

(b) if the court so directs, may take place, wholly or in part, in the defendant’s absence.

(7) At a hearing at which the defendant is present—

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

(i) representations first by the prosecutor and any other person served with the application, and then by the defendant, in the presence of them all, and then

(ii) further representations by the prosecutor and any such other person in the defendant’s absence; but

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

(8) The court may only determine the application if satisfied that it has been able to take adequate account of—

(a) such rights of confidentiality as apply to the material; and

(b) the defendant’s right to a fair trial.

(9) Unless the court otherwise directs, the court officer—

(a) must not give notice to anyone other than the prosecutor—

(i) of the hearing of an application under this rule, unless the prosecutor served the application on that person, or

(ii) of the court’s decision on the application;

(b) may—

(i) keep a written application or representations, or

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

[Note. The court’s power to order that it is not in the public interest to disclose material is provided for by sections 3(6), 7(6) (where the investigation began between 1st April, 1997 and 3rd April, 2005) and 7A(8) (where the investigation began on or after 4th April, 2005) of the Criminal Procedure and Investigations Act 1996[^f00287].

Defence disclosure

15.4

(1) This rule applies where—

(a) under section 5 or 6 of the Criminal Procedure and Investigations Act 1996[^f00289], the defendant gives a defence statement;

(b) under section 6C of the 1996 Act[^f00290], the defendant gives a defence witness notice.

(2) The defendant must serve such a statement or notice on—

(a) the court officer; and

(b) the prosecutor.

[Note. The Practice Direction sets out forms of—

(a) defence statement; and

(b) defence witness notice.

Defendant's application for prosecution disclosure

15.5

(1) This rule applies where the defendant—

(a) has served a defence statement given under the Criminal Procedure and Investigations Act 1996; and

(b) wants the court to require the prosecutor to disclose material.

(2) The defendant must serve an application on—

(a) the court officer; and

(b) the prosecutor.

(3) The application must—

(a) describe the material that the defendant wants the prosecutor to disclose;

(b) explain why the defendant thinks there is reasonable cause to believe that—

(i) the prosecutor has that material, and

(ii) it is material that the Criminal Procedure and Investigations Act 1996 requires the prosecutor to disclose; and

(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 require the prosecutor to disclose material unless the prosecutor—

(a) is present; or

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

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

Review of public interest ruling

15.6

(1) This rule applies where the court has ordered that it is not in the public interest to disclose material that the prosecutor otherwise would have to disclose, and—

(a) the defendant wants the court to review that decision; or

(b) the Crown Court reviews that decision on its own initiative.

(2) Where the defendant wants the court to review that decision, the defendant must—

(a) serve an application on—

(i) the court officer, and

(ii) the prosecutor; and

(b) in the application—

(i) describe the material that the defendant wants the prosecutor to disclose, and

(ii) explain why the defendant thinks it is no longer in the public interest for the prosecutor not to disclose it.

(3) The prosecutor must serve any such application on any person who the prosecutor thinks would be directly affected if that material were disclosed.

(4) The prosecutor, and any such person, must serve any representations on—

(a) the court officer; and

(b) the defendant, unless to do so would in effect reveal something that either thinks ought not be disclosed.

(5) The court may direct—

(a) the prosecutor to serve any such application on any person who the court considers would be directly affected if that material were disclosed;

(b) the prosecutor and any such person to serve any representations on the defendant.

(6) The court must review a decision to which this rule applies at a hearing which—

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

(b) if the court so directs, may take place, wholly or in part, in the defendant’s absence.

(7) At a hearing at which the defendant is present—

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

(i) representations first by the defendant, and then by the prosecutor and any other person served with the application, in the presence of them all, and then

(ii) further representations by the prosecutor and any such other person in the defendant’s absence; but

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

(8) The court may only conclude a review if satisfied that it has been able to take adequate account of—

(a) such rights of confidentiality as apply to the material; and

(b) the defendant’s right to a fair trial.

[Note. The court’s power to review a public interest ruling is provided for by sections 14 and 15 of the Criminal Procedure and Investigations Act 1996[^f00292]. Under section 14 of the Act, a magistrates’ court may reconsider an order for non-disclosure only if a defendant applies. Under section 15, the Crown Court may do so on an application, or on its own initiative.

Defendant's application to use disclosed material

15.7

(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[^f00293].

Unauthorised use of disclosed material

15.8

(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 48 (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

15.9

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 15.5 applies (Defendant’s application for prosecution disclosure).

PART 16 — WRITTEN WITNESS STATEMENTS

Contents of this Part

When this Part applies	rule 16.1
Content of written witness statement	rule 16.2
Reference to exhibit	rule 16.3
Written witness statement in evidence	rule 16.4

When this Part applies

16.1

This Part applies where a party wants to introduce a written witness statement in evidence under section 9 of the Criminal Justice Act 1967[^f00306].

[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 witness statement

16.2

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

16.3

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 witness statement in evidence

16.4

(1) A party who wants to introduce in evidence a written witness 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 to object to the introduction of the statement in evidence instead of the witness giving evidence in person;

(b) of the time limit for objecting under this rule; and

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

(ii) may decide not to do so.

(4) A party served with a written witness statement who objects to its introduction in evidence must—

(a) serve notice of the objection on—

(i) the party who served it, and

(ii) the court officer; and

(b) serve the notice of objection not more than 7 days after service of the statement unless—

(i) the court extends that time limit, before or after the statement was served,

(ii) rule 24.8 (Written guilty plea: special rules) applies, in which case the time limit is the later of 7 days after service of the statement or 7 days before the hearing date, or

(iii) rule 24.9 (Single justice procedure: special rules) applies, in which case the time limit is 21 days after service of the statement.

(5) 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.

(6) 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 written witness statement and a form of notice for use in connection with this rule.

PART 17 — WITNESS SUMMONSES, WARRANTS AND ORDERS

Contents of this Part

When this Part applies	rule 17.1
Issue etc. of summons, warrant or order with or without a hearing	rule 17.2
Application for summons, warrant or order: general rules	rule 17.3
Written application: form and service	rule 17.4
Application for summons to produce a document, etc.:
special rules	rule 17.5
Application for summons to produce a document, etc.:
court's assessment of relevance and confidentiality	rule 17.6
Application to withdraw a summons, warrant or order	rule 17.7
Court's power to vary requirements under this Part	rule 17.8

When this Part applies

17.1

(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[^f00309],

(ii) paragraph 4 of Schedule 3 to the Crime and Disorder Act 1998[^f00310],

(iii) section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965[^f00311], or

(iv) section 7 of the Bankers’ Books Evidence Act 1879[^f00312];

(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. 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 or under paragraph 4 of Schedule 3 to the Crime and Disorder Act 1998. The Crown Court may do so under sections 2, 2D, 3 and 4 of the Criminal Procedure (Attendance of Witnesses) Act 1965. 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. 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

17.2

(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 17.5 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

17.3

(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 17.5 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, paragraph 4(5) of Schedule 3 to the Crime and Disorder Act 1998 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

17.4

(1) An application in writing under rule 17.3 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 17.5, if that rule applies.

[Note. Declarations of truth in witness statements are required by section 9 of the Criminal Justice Act 1967[^f00313]. Section 89 of the 1967 Act[^f00314]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

17.5

(1) This rule applies to an application under rule 17.3 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 17.4.

(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[^f00315], 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

17.6

(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

17.7

(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 17.6 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[^f00316]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

17.8

(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 18 — MEASURES TO ASSIST A WITNESS OR DEFENDANT TO GIVE EVIDENCE

Contents of this Part

General rules
When this Part applies	rule 18.1
Meaning of ‘witness’	rule 18.2
Making an application for a direction or order	rule 18.3
Decisions and reasons	rule 18.4
Court's power to vary requirements under this Part	rule 18.5
Custody of documents	rule 18.6
Declaration by intermediary	rule 18.7

Special measures directions
Exercise of court's powers	rule 18.8
Special measures direction for a young witness	rule 18.9
Content of application for a special measures direction	rule 18.10
Application to vary or discharge a special measures direction	rule 18.11
Application containing information withheld from another party	rule 18.12
Representations in response	rule 18.13

Defendant's evidence directions
Exercise of court's powers	rule 18.14
Content of application for a defendant's evidence direction	rule 18.15
Application to vary or discharge a defendant's evidence direction	rule 18.16
Representations in response	rule 18.17

Witness anonymity orders
Exercise of court's powers	rule 18.18
Content and conduct of application for a witness anonymity order	rule 18.19
Duty of court officer to notify the Director of Public Prosecutions	rule 18.20
Application to vary or discharge a witness anonymity order	rule 18.21
Representations in response	rule 18.22

Live link directions
Exercise of court's powers	rule 18.23
Content of application for a live link direction	rule 18.24
Application to discharge a live link direction	rule 18.25
Representations in response	rule 18.26

GENERAL RULES

When this Part applies

18.1

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[^f00317], 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[^f00318]),

(iii) hearing a witness’ evidence in private (section 25 of the 1999 Act[^f00319]),

(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[^f00320]),

(vi) questioning a witness through an intermediary (section 29 of the 1999 Act[^f00321]),

(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[^f00322];

(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[^f00323], or

(ii) through an intermediary, under sections 33BA and 33BB of the 1999 Act[^f00324];

(d) where the court can—

(i) make a witness anonymity order, under section 86 of the Coroners and Justice Act 2009[^f00325], 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[^f00326], or

(ii) sections 51 and 52 of the Criminal Justice Act 2003[^f00327];

(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’

18.2

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.]

Making an application for a direction or order

18.3

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 18.10 (Content of application for a special measures direction), rule 18.15 (Content of application for a defendant’s evidence direction), rule 18.19 (Content and conduct of application for a witness anonymity order) and rule 18.24 (Content of application for a live link direction).

Decisions and reasons

18.4

(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[^f00328].]

Court's power to vary requirements under this Part

18.5

(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

18.6

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

18.7

(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.

SPECIAL MEASURES DIRECTIONS

Exercise of court's powers

18.8

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

18.9

(1) This rule applies where, under section 21 or section 22 of the Youth Justice and Criminal Evidence Act 1999[^f00329], 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

18.10

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

18.11

(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

18.12

(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

18.13

(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.]

DEFENDANT'S EVIDENCE DIRECTIONS

Exercise of court's powers

18.14

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

18.15

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

18.16

(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

18.17

(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.

WITNESS ANONYMITY ORDERS

Exercise of court's powers

18.18

(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 34 (Appeal to the Crown Court) or Part 39 (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

18.19

(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[^f00330];

(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 sections 45, 45A or 46 of the Youth Justice and Criminal Evidence Act 1999[^f00331],

(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[^f00332], 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—

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