The objectives and content of the first Criminal Procedure Rules
Statement dated March 2005
'The creation of the Criminal Procedure Rule Committee and of a new criminal procedure rule making regime were recommendations of Lord Justice Auld's Review of the Criminal Courts of England and Wales. He described in Chapter 10 the main problems with the regime as it then was, and his proposals for its replacement':
"Fairness, efficiency and effectiveness of the criminal justice system demand that its procedures should be simple, accessible and, so far as practicable, the same for every level and type of criminal jurisdiction. There are many features of criminal procedure that are common to summary proceedings and those on indictment, yet at present they are separately provided for in each jurisdiction and in a multiplicity of instruments and, often, in quite different language. Such a mix of different provisions providing for common procedural needs is an impediment to understanding by courts, legal practitioners, parties and others of the workings of the courts, and thus to the accessibility of the law...
Finding the right source or sources can be a time-taking and confusing task for judges and experienced criminal law practitioners. And, having found them, the content is often impenetrable and sometimes leads to conflicting decisions. What can it be like for lay magistrates, dependent on the advice of their often over-pressed court legal adviser in the middle of a busy list, still more for the often unrepresented defendant in the magistrates' courts, equally dependent on help from the court staff or even the prosecutor's goodwill? Complexity and uncertainty such as this increases cost. Little attention is paid to it because it is hidden. It causes expensive delays and mistakes in the legal process at all levels; it spreads beyond the courtroom itself in the training and - with each new piece of legislation - re-training in one form or another of many involved in the criminal justice process. There are significant costs to all this - in the form of injustice and loss of public confidence and a financial cost to the public who have to pay the bill. ...
What is needed is not a consolidation of all relevant current provisions but a concise and simply expressed statement of the current statutory and common law procedural rules and the product of the present overlay of practice directions, codes of guidance and the like. It should be in a single instrument and laid out in such a form that it, the Code, can be readily amended without constant recourse to primary legislation and without changing the ‘geography’ or the familiar paragraph and section numbers governing each topic. ...
That instrument should begin with a clear statement of purpose and general rules of application and interpretation, as successfully pioneered in the civil justice rules flowing from Lord Woolf's reforms of the civil law. It should combine the various sources into a concise summary of rules, reducing them so far as possible into a discipline common to all levels of jurisdiction, using the same language and prescribing the same forms. It should make separate provision only insofar as necessary to allow for procedural differences at each level flowing from the court's composition and nature and volume of its work. It should be capable of ready and orderly amendment, by secondary legislation along the lines of that enabling the Lord Chancellor to amend the Civil Procedure Rules. ...
The bulk of the work, whether of principle or practicality, in proposing and formulating provisions of the Code and, subsequently, their amendment would have to be consigned to a separate, standing body specially constituted for the purpose, such as a statutory rules committee. It should be closer in form and function to the Civil Procedure Rule Committee the function of which is to make rules subject to the Lord Chancellor allowing them, rather than to the much smaller Crown Court and Magistrates' Courts' Rules Committees which do not meet as committees and which, in the main, simply react in correspondence to drafts prepared by the Home Office and Lord Chancellor's Department. Its initial role would be to draft the code and thereafter to maintain it, taking into account new and projected legislation and draft Bills produced by the Law Commission. ...
I suggest that the body entrusted with this important task should be statutory and have a status similar to that of the Civil Procedure Rule Committee. It should be called the Criminal Procedure Rules Committee. In my view it should be chaired by the Lord Chief Justice and should include judges from each level of the criminal court ... together with an appropriate number of District Judges, magistrates and justices' clerks. It should also contain a number of experienced criminal practitioners from both branches of the profession, and at least one academic specialising in the field, together with appropriate representatives of voluntary organisations with a direct interest in the work of the criminal courts. ..."
In the White Paper Justice for All the government accepted the substance of those recommendations and the Committee was established by sections 69 to 73 of the Courts Act 2003.
The first Rules represent a modest but at the same time a significant step towards the creation of a comprehensive criminal procedural code.
It is a modest step because current criminal procedure is almost entirely preserved by these Rules. That is deliberate. The Rules promote a culture change in the management of criminal cases, but that change is evolutionary. As Lord Justice Auld observed in his Review, the criminal justice system and public confidence in it are readily susceptible to damage by disjointed, sporadic and precipitate change. To those who apply the law day by day in the criminal courts it can seem that no sooner is a fresh initiative absorbed than it is superseded by another, before the first has had time to take effect and sometimes before the first has been implemented at all. This breeds confusion, which in turn breeds cynicism and eventually leads to apathy. The criminal courts bear a heavy responsibility to the community to do justice in criminal cases. Nowhere is simplicity and predictability more important than in those courts. Nowhere has disjointed and precipitate change more potential to cause injustice. And so in order to achieve an orderly transition from the old rule-making regime to the new the first Criminal Procedure Rules unashamedly adopt all the procedure rules made under the powers exercised by the old rule-making authorities.
It is a significant step, nonetheless, because the Rules include three very important new elements. They represent the first ever consolidation of criminal procedure rules in England and Wales. They subject criminal procedure to an explicit and overriding objective. And they make explicit and particular the powers and duties of judicial case management identified in decisions of the Court of Appeal.
Having framed these first Rules, the Committee intends to start work at once on reforming them. The Courts Act requires it to exercise its powers with a view to securing that the criminal justice system is accessible, fair and efficient and the rules are simple and simply expressed. Many of the rules that have been adopted are not. Some verge on the obscure, even for professional lawyers. As rapidly as possible they will be replaced with rules written in plain English. Reform will be carried out to a programme to be agreed with ministers. The Committee has imposed upon itself the discipline that, ordinarily, amendments to the Rules will be made in April and in September of each year, with the amendments coming into force ordinarily 3 months after that. That discipline necessarily must give way to any urgent need for new rules to be made at other times, but the principle is consistent with the Committee's wish to promote measured and effective change that participants and courts have adequate opportunity to consider and absorb before it takes effect.
The Rules are arranged in 10 principal subject divisions that correspond with the main stages of a criminal case. The divisions are general matters, preliminary proceedings, custody and bail, disclosure, evidence, trial, sentencing, confiscation and related proceedings, appeal and costs. To make it easier to find and refer to rules, and in due course to make it easier to amend them, they are arranged in a total of 78 separate Parts.
Under the old rule making regime the same rules had to be made in two or three separate versions in order to apply in different criminal courts. In the new Rules, however, the separate versions have been consolidated. For example, the four rules that were rules 1 and 2 of the Magistrates' Courts (Special Measures Directions) Rules 2002 and rules 1 and 2 of the Crown Court (Special Measures Directions and Directions Prohibiting Cross-Examination) Rules 2002 are now in the consolidated rule 29.1 under the heading, ‘Application for special measures directions’.
Part 1 of the new Rules contains the overriding objective to which all participants and the courts themselves are subject. It is this objective that is at the heart of the culture change that the Rules promote. The presumption of innocence and a robust adversarial process are essential features of English legal tradition and of the defendant's right to a fair trial. The overriding objective acknowledges those rights. It must not be read as detracting from a defendant's right to silence or from the confidentiality properly attaching to what passes between a lawyer and his client. Such rights in any event are guaranteed by the Human Rights Act 1998 to which the Criminal Procedure Rules, like other legislation, are subject. But it is no part of a fair trial that questions of guilt and innocence should be determined by procedural manoeuvres. On the contrary, fairness is best served when the issues between the parties are identified as early and as clearly as possible. Lord Justice Auld made this point in his Review. The right to silence does not justify a refusal to provide the court with such information as is necessary for the effective management of the case and:
"To the extent that the prosecution may legitimately wish to fill possible holes in its case once issues have been identified ... , I can understand why, as a matter of tactics, a defendant might prefer to keep his case close to his chest. But that is not a valid reason for preventing a full and fair hearing on the issues canvassed at the trial. A criminal trial is not a game under which a guilty defendant should be provided with a sporting chance. It is a search for truth in accordance with the twin principles that the prosecution must prove its case and that a defendant is not obliged to inculpate himself, the object being to convict the guilty and acquit the innocent. Requiring a defendant to indicate in advance what he disputes about the prosecution case offends neither of those principles."
The Committee, too, was not persuaded that it is just for a party to obstruct or delay the preparation of a case for trial in order to secure some perceived procedural advantage, or to take unfair advantage of a mistake by someone else. If courts allow that to happen it damages public confidence in criminal justice. The new rules make it clear that courts must not allow it to happen.
Part 2 defines what some words in the new Rules mean. It introduces the glossary, which lists and explains some words in those rules reproduced by the new Rules that, before they are simplified, may confuse or mislead readers unfamiliar with them. Part 2 applies the new Rules in all cases on and after 4th April 2005. On that date the present rules will be revoked by the Courts Act 2003 (Commencement No. 6 and Savings) Order 2004 and the Courts Act 2003 (Consequential Amendments) Order 2004. However, because the Criminal Procedure Rules substantially reproduce the rules revoked the transition to the new Rules will not disrupt cases then passing through the courts. The source of authority for the procedure rules will change, and the overriding objective and the rules on case management will give courts at once the power to manage all cases actively, but other procedures (and time limits, and forms) will remain the same.
Part 3 for the first time gives courts explicit powers to manage the progression of criminal cases. In the cases of Chaaban  EWCA Crim 1012 and Jisl  EWCA Crim 696 the Court of Appeal held that courts have a duty to manage criminal cases effectively. The new rules give them the framework of powers they need to fulfil that duty. Read with the overriding objective the Part 3 rules will help the courts to promote the culture change in criminal case management that the Committee wants. It is the Part 3 rules, in particular, that are complemented by the Criminal Case Management Framework published by the criminal justice ministers with the Lord Chief Justice in July 2004. The roles and responsibilities of participants that the Framework describes are consistent with the Part 3 rules. The Committee is working to produce new case management forms that will help prosecutors, defendants and the courts themselves to plan the progression of a case effectively from the outset.
Part 5 introduces a new way of prescribing forms for use in criminal cases. Instead of appending them to the Rules themselves, in future after discussion in the Committee the Lord Chief Justice and the Lord Chancellor will be asked to add new forms to the consolidated criminal cases Practice Direction made under section 74 of the Courts Act 2003. Forms are a necessary part of the administrative working of the courts. It is important that they should be accessible and easy to understand and use. In future, court users will find the necessary forms more accessible than before. Consistently with the Committee's determination to make the transition to the new rule regime straightforward and orderly, to begin with the forms that are now in use all will still be used.
With few exceptions the remaining rules consolidate and reproduce the existing rules without significant changes. Those changes that are significant are described below.
The rules in the division that deals with Preliminary proceedings (Parts 7 to 17) are expected to change when Part 6 of the Criminal Justice Act 2003 (allocation and sending of offences) is brought into force. The rules have been arranged to make it as easy as possible to amend them to incorporate those changes.
Pending those further changes rules 7.1 and 7.2 (which derive from rules 4 and 100 of the Magistrates' Courts Rules 1981) have been re-arranged to make them more easily understood. Members of the Committee were firmly of the view that without suitable amendment those particular rules were especially difficult for non-lawyers to understand.
Rule 12.2, which derives from rule 24ZA of the Crown Court Rules 1982, has been amended at the suggestion of the Office for Criminal Justice Reform to make optional those hearings in the Crown Court that are known as 'preliminary hearings' in cases that have been sent for trial. At present, there must be a preliminary court hearing even before the prosecution case papers are ready, with the result that that hearing usually serves no useful purpose. The new rule does away with that unhelpful requirement. In future it will be up to the courts to decide when the first hearing in the Crown Court should be.
The rules in the division that deals with Custody and bail (Parts 18 to 20) the Committee is likely to wish to simplify early in its programme of reform.
The rules in the division that deals with Disclosure (Parts 21 to 26) anticipate the coming into force of Part 5 of the Criminal Justice Act 2003.
The rules in the division on Evidence (Parts 27 to 36) incorporate, in Part 35, rules made recently to supplement Chapter 1 of Part 11 of the Criminal Justice Act 2003 on evidence of bad character.
The rules in Part 34 anticipate the coming into force of Chapter 2 of Part 11 of the Criminal Justice Act, on hearsay evidence.
The Trial division rules (Parts 37 to 41) anticipate, in Part 41, the coming into force of Part 10 of the Criminal Justice Act on retrial for serious offences.
The rules in the Sentencing division (Parts 42 to 55) and in the division on Confiscation and related proceedings (Parts 56 to 62) contain no significant changes or additions to existing procedure rules.
The rules in the division on Appeals (Parts 63 to 75) anticipate Part 9 of the Criminal Justice Act, that allows the prosecution to appeal in certain circumstances: see Part 66 of the Rules.
Part 68 includes all the procedure rules that govern a defendant's appeal to the Court of Appeal. It incorporates some new rules that give effect to section 315 of the Criminal Justice Act 2003 (grounds of appeal on the reference of a case by the Criminal Cases Review Commission).
Most of the rules on costs in criminal cases are made by other rule-making authorities, mainly the Lord Chancellor. It may be that at some stage he will decide to transfer some of those responsibilities of his to the Committee. The Costs division rules (Parts 76 to 78) contain existing procedure rules.
Finally, the Glossary is not a list of legal definitions of the expressions that it contains. Like the glossary in the Civil Procedure Rules it is meant only to help people who are not familiar with those expressions to understand the rules in which they are used. As the old rules, now reproduced, are gradually reformed and simplified, using plain modern English, the Committee expects the need for a glossary progressively to diminish and disappear.’