Ministry of Justice

Notes to accompany 8th update, March 2009

Changes made by The Criminal Procedure (Amendment No. 2) Rules 2008

Changes to the Consolidated Criminal Practice Direction

  • on 28 August 2008 the Lord Chief Justice handed down a Practice Direction amendment about applications for witness anonymity orders. The same amendment added two new forms to Annex D, for use in connection with Part 63 of the Criminal Procedure Rules (appeal to the Crown Court): a new notice of appeal, and a new notice abandoning an appeal.
  • two more new forms are being added to Annex D of the Practice Direction: a notice of guilty plea by post (in the form already in use), which will be used in connection with new rule 37.8 (written guilty plea: special rules); and a form of statutory declaration by a defendant who did not know about the trial, for use in connection with new rule 37.11 (procedure where a party is absent). (The notice of guilty plea by post is issued only by courts and prosecutors and is not reproduced in this Update.)

Changes made by The Criminal Procedure (Amendment No.2) Rules 2008

The rule changes come into force on Monday 6 April 2009. However, to avoid confusion and potential unfairness to those involved in cases that have started before that date, rule 3 of the Amendment Rules adds new paragraphs to rule 2.1 of the Criminal Procedure Rules so as to provide that:

  • the new rules in Part 21 will apply on 6 April, unless the court otherwise directs;
  • the new rules in Part 37 will apply only where a defendant pleads guilty, or a trial starts, on or after that date; and
  • the new rules in Part 44 will apply only where an application to which that Part applies is made on or after that date.

The Amendment Rules make these main changes to the Criminal Procedure Rules 2005:

Part 21 – Initial details of the prosecution case

The case preparation initiative in magistrates’ courts known as ‘Criminal Justice: Simple, Speedy, Summary’ (or by its initials, ‘CJSSS’) requires the prosecutor to make available to the defendant and to the court, on the first day a case comes to court, enough information about it for the defendant to be given effective advice, and for the court to make effective case management decisions, straight away. There is more information about the scheme at http://www.justice.gov.uk/news/newsrelease231008a.htm.

There are some exceptions. The scheme does not apply to cases that have to be sent at once for trial in the Crown Court (because in those cases information about the prosecution case has to be given in due course under the rules that apply to sending for trial). Nor is it yet available in every case at every magistrates’ court throughout the country.

Rule 8 of the Amendment Rules and Schedule 1 give legislative effect to the CJSSS initiative. They replace the existing rules in Part 21 of the Criminal Procedure Rules with rules that are shorter and clearer. The old rules applied only to an offence classified as one that could be tried either way, in a magistrates’ court or in the Crown Court. The new rules, like the CJSSS initiative itself, apply to any offence that can be tried in a magistrates’ court, including one that can be tried only summarily.

New rule 21.1(2) of the Criminal Procedure Rules allows ‘the court’ to disapply the new Part 21 for a specified period in any category of case, or in all cases in ‘that court’. Read with the definition of ‘court’ for the purposes of the Criminal Procedure Rules (see rule 2.2), this gives local justices of the peace and their clerks a wide legislative discretion to accommodate the progressive introduction of CJSSS in different cases in different areas, and in youth courts as well as in adult courts.

Part 37 and Part 44 – Trial, sentence and breach proceedings in magistrates’ courts

Parts 37, 38 and 44 of the Criminal Procedure Rules 2005 contained rules about trial and sentence in magistrates’ courts, including youth courts. They reproduced rules formerly contained in the Magistrates' Courts Rules 1981 and in the Magistrates’ Courts (Children and Young Persons) Rules 1992. But those rules were incomplete. Essential rules of procedure governing trial and sentencing are contained in other legislation (principally, but not exclusively, in the Magistrates’ Courts Act 1980); in practice directions; and in case law. The new rules consolidate, revise and simplify the old rules. They incorporate other relevant rules of procedure so as to make the new rules comprehensive and comprehensible. They have been rewritten in the style of other new criminal procedure rules and, like those other new rules, they include notes that refer the reader to other relevant provisions, including the legislation that establishes rules of procedure that have been incorporated.

Rule 9 of the Amendment Rules and Schedule 2 replace the old Part 37 rules with the new consolidated Part 37. Rule 10 omits the old Part 38, which no longer is needed.

Parts 38 and 44 of the Criminal Procedure Rules 2005 also dealt with the procedure where a probation officer reports to a youth court that a young defendant has disobeyed the terms of an order made on a finding of guilt, such as an order to attend a training course or other activity. Rule 11 of the Amendment Rules and Schedule 3 replace those old rules with a new Part 44 that contains revised, simplified and consolidated rules about that procedure. The new rules apply to adult defendants in magistrates’ courts as well.

The Criminal Procedure Rule Committee consulted publicly on the new Part 37 rules between June and September, 2008. Copies of the Committee’s invitation to comment were sent to members of the judiciary, to professional and other bodies with an interest in criminal procedure, to the principal prosecuting authorities, to the criminal justice departments of government, and to editors of relevant legal periodicals. The invitation was published on the Ministry of Justice website.

A total of 18 responses were received: three from judicial bodies, four from legal professional bodies, four from prosecuting authorities, one from Victim Support, and others from individuals (a judge, a magistrate, a justices’ legal adviser, a barrister, a solicitor and an academic). Respondents answered 12 questions posed by the invitation about the content of the proposed rules. In each case, the Rule Committee has accepted the view of the majority of respondents. In addition, respondents offered a number of detailed drafting suggestions, many of which the Rule Committee adopted gratefully. The revisions of the rules about sentencing and about breach proceedings derive from suggestions by several respondents to the consultation, and are consistent with rule 1.1(2)(f) of the Criminal Procedure Rules (part of the overriding objective).

Part 19 – Bail in magistrates’ courts and the Crown Court

In a report published in April, 2008, entitled, ‘A review to ascertain the circumstances in which Anthony Leon Peart, also known as Anthony Leon Joseph, came to be at liberty on 29th July, 2005’, undertaken by HM Crown Prosecution Service Inspectorate with the other criminal justice inspectorates, the inspectors made this recommendation, among others (at paragraph 3.6 of the report):

We recommend that:

  • where there is any doubt as to the suitability of an address put forward as a place of residence, the prosecution team should provide the court with sufficient information to enable it to make an informed decision; and
  • suitable mechanisms should be in place to enable necessary checks to be made promptly.

The report is at: http://www.attorneygeneral.gov.uk/attachments/Peart_Review.pdf.

The changes to Part 19 of the Criminal Procedure Rules made by rule 7 of the Amendment Rules contribute to carrying that recommendation into effect, consistently with the overriding objective in Part 1 of the Rules. The amendments give legislative effect to the well-established court practice of requiring prosecutors (with the police) to investigate the suitability of an address proposed as a condition of residence for a defendant who is to be released on conditional bail. The amendments oblige the prosecutor to assist the court, and they oblige a defendant who may be released on bail with a condition of residence to co-operate with the prosecutor in providing that assistance.

The rules in Part 19 already require a party to a case in the Crown Court, who intends to apply for a variation of bail conditions, to give advance notice explaining what is sought, and why. The changes made by these Amendment Rules extend that requirement to magistrates’ courts as well.

In addition, the Amendment Rules make these changes:

Part 2 – Understanding and applying the rules

  • Rule 4 of the Amendment Rules adds to Part 2 of the Criminal Procedure Rules a definition of ‘justices’ legal adviser’, which is an expression used in the new Part 37 rules (and which the Criminal Procedure Rule Committee expects to use again in other new rules).

Arrangement of Rules

  • Rule 12 of the Amendment Rules brings up to date the Arrangement of Rules at the beginning of The Criminal Procedure Rules 2005.
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