Criminal Procedure Rules

Notes to accompany 3^rd update, November 2006

Changes made by the Criminal Procedure (Amendment No. 2) Rules 2006

All the rule changes come into force on 6^th November, 2006

The Amendment Rules add the following new rules to the Criminal Procedure Rules 2005:

a new Part 33 (expert evidence). These are the first Criminal Procedure Rules on expert evidence. The Criminal Procedure Rules 2005 contained nothing explicit about how the overriding objective in Part 1 of those Rules (to deal with cases justly) should be applied to an expert witness. Nor did they contain anything about the form in which expert evidence should be introduced, or about the use of the court’s case management powers to identify exactly what was in issue between experts. When the Criminal Procedure Rules first were made, the Committee anticipated that explicit Rules about expert evidence would be made fairly soon and the Rules were arranged accordingly, setting aside part 33 for those provisions.The new rules deal with the duty of an expert to the criminal court and with the content of an expert’s report. They provide explicitly for pre-trial discussion between experts and they allow the court to order that expert evidence for the defence should be given by a single joint defence expert. The Criminal Procedure Rule Committee consulted widely on these rules between October, 2005 and January, 2006. It invited comments from participants in the criminal justice system, from bodies representing non-legal professions, many of whose members give expert evidence, and from the various bodies formed specifically to represent the views of expert witnesses. The rules take account of the numerous responses received.
A new Part 36 (evidence about a complainant’s previous sexual behaviour). During preparation of the government consultation paper “Convicting Rapists and Protecting Victims – Justice for Victims of Rape” that was published by the Office for Criminal Justice Reform in March 2006, it was noted that many applications for permission to cross examine rape complainants about previous sexual experience were made late, often not until the trial. Because that gave the complainant no time to prepare for the ordeal of being cross-examined, it tended to aggravate that person’s distress. The government asked the Committee to review the existing rules.These new rules are shorter and clearer than the Rules they replace. The new rules discourage late applications, especially if made at trial. They require every application, including a late one, to be made in writing, explaining properly the reasons for making it and the legal grounds on which it is made. If an application succeeds, the new rules require the court to give the prosecutor an adequate opportunity to consider what special measures may be needed to support the complainant in giving evidence.

In addition, the Amendment Rules make the following alterations to existing Criminal Procedure Rules:

Part 2 (understanding and applying the Rules) now provides that the new expert evidence rules in Part 33 will apply in all cases where the defendant is charged after 6 November 2006; and in other cases if the court so orders.
Part 4 (service of documents) is extended to govern the service of a requisition issued by a public prosecutor under section 29 of the Criminal Justice Act 2003.
THIS LINK HAS BEEN ARCHIVED. PLEASE CHECK THIS LINKPart 7 (commencing proceedings in magistrates’ courts) is extended to govern the form and content of a requisition and written charge issued by a public prosecutor under section 29 of the Criminal Justice Act 2003. A requisition issued by a public prosecutor will have the same effect as a summons issued by a magistrate or by a justices’ clerk: both require an accused to attend the court. So the existing rules about the form, content and service of summonses will apply to requisitions as well. The Committee has taken the opportunity to remove what has become an unnecessary administrative burden for magistrates and their clerks, who now are required to sign every summons they issue. The amended rules will require that a summons or requisition must state the name of the magistrate, justices’ clerk or prosecutor responsible for issuing it, so that that person will be personally accountable for, but no longer required to sign, every one of those documents.
Part 15 (preparatory hearings in cases of serious fraud and other complex or lengthy cases in the Crown Court) is extended, to govern applications under section 17 of the Domestic Violence, Crime and Victims Act 2004 for the trial of some of the counts in an indictment without a jury. The law that will allow part of a trial to be heard by a judge alone in cases of multiple offending was based on a recommendation by the Law Commission. An application for such a trial has to be made at a “preparatory hearing”, which is a case management hearing in a serious fraud or other complex case at which the court has power to make certain orders for the preparation of the case, from which in certain circumstances the parties can appeal at once to the Court of Appeal. The rules that govern applications for preparatory hearings are contained in Part 15 of the Criminal Procedure Rules. The new rules amend those rules so that they extend to applications for this particular sort of non-jury trial. They do not change the existing procedures under Part 15.
Part 24 (Disclosure of expert evidence) and Part 29 (Special measures directions) are amended (a) to require parties to disclose expert evidence to the court as well as to other parties and (b) to require them to tell the expert that they have done so.
Part 68 (Appeal to the Court of Appeal against conviction, sentence or sentence review decision) is extended to govern the procedure on an appeal, under section 74(8) of the Serious Organised Crime and Police Act 2005, against a sentence review decision. Section 74 created a new right of appeal by either a defendant or a prosecutor against a sentence review decision in the Crown Court, where a defendant has helped the police or other investigators, or where a defendant has promised to help but in fact has not done so. The rules have been amended so that the procedure they describe applies to the new types of appeal, as well as to other rights of appeal. The rules about the supply of transcript and other documents to the parties and others have been amended to make it clear that the court can forbid that supply if appropriate.

The following new and revised forms are introduced on 6 November 2006 by Amendment No. 14 to the Consolidated Criminal Practice Direction:

New form of indictment for non-jury trial of some counts

This new form, for use in connection with Part 14, is for cases of multiple offending where the court orders the trial of some counts without a jury under section 17 of the Domestic Violence, Crime and Victims Act 2004.

Amended form of application for preparatory hearing

This form, for use in connection with Part 15, has been revised to take account of the changes to that Part.

Amended form of notice of prosecution appeal

This form, for use in connection with Part 66, has been revised to include more information about the defendant(s) and co-accused who are affected by the appeal.

New form of application for leave to appeal to the Court of Appeal Criminal Division against a sentence review decision

This new form, for use in connection with the changes to Part 68, is for applications under section 74(8) of the Serious Organised Crime and Police Act 2005.

The Crown Court Disclosure Protocol

This protocol was published by the judiciary on 20 February 2006 and relates to the disclosure of unused material in criminal trials in the Crown Court. The protocol was designed to establish firm principles for the management of disclosure, whether by the prosecution or the defence, in order to improve the efficient delivery of justice and thereby enhance public confidence in the criminal justice system.