Part I: Practice Directions of General Application

(I.1.1) In magistrates' courts, advocates appear without robes or wigs. In all other courts, Queen's Counsel wear a short wig and a silk (or stuff) gown over a court coat with bands, junior counsel wear a short wig and stuff gown with bands. Solicitors and other advocates authorised under the Courts and Legal Services Act 1990 wear a black solicitor’s gown with bands; they may wear short wigs in circumstances where they would be worn by Queen’s Counsel or junior counsel.

(I.1.2) High Court Judges hearing criminal cases shall wear the winter criminal robe year-round. Scarlet summer robes are no longer issued or worn.

(I.2.1) Section 9 of the Contempt of Court Act 1981 contains provisions governing the unofficial use of tape recorders in court. Section 9(1) provides that it is a contempt of court (a) to use in court, or bring into court for use, any tape recorder or other instrument for recording sound, except with the leave of the Court; (b) to publish a recording of legal proceedings made by means of any such instrument, or any recording derived directly or indirectly from it, by playing it in the hearing of the public or any section of the public, or to dispose of it or any recording so derived, with a view to such publication; (c) to use any such recording in contravention of any conditions of leave granted under paragraph (a). These provisions do not apply to the making or use of sound recordings for purposes of official transcripts of the proceedings, upon which the Act imposes no restriction whatever.

(I.2.2) The discretion given to the Court to grant, withhold or withdraw leave to use tape recorders or to impose conditions as to the use of the recording is unlimited, but the following factors may be relevant to its exercise: (a) the existence of any reasonable need on the part of the applicant for leave, whether a litigant or a person connected with the press or broadcasting, for the recording to be made; (b) the risk that the recording could be used for the purpose of briefing witnesses out of court; (c) any possibility that the use of the recorder would disturb the proceedings or distract or worry any witnesses or other participants.

(I.2.3) Consideration should always be given whether conditions as to the use of a recording made pursuant to leave should be imposed. The identity and role of the applicant for leave and the nature of the subject matter of the proceedings may be relevant to this.

(I.2.4) The particular restriction imposed by section 9(1)(b) applies in every case, but may not be present to the mind of every applicant to whom leave is given. It may therefore be desirable on occasion for this provision to be drawn to the attention of those to whom leave is given.

(I.2.5) The transcript of a permitted recording is intended for the use of the person given leave to make it and is not intended to be used as, or to compete with, the official transcript mentioned in section 9(4).

(I.3.1) Under section 4(2) of the Contempt of Court Act 1981 a court may, where it appears necessary for avoiding a substantial risk of prejudice to the administration of justice in the proceedings before it or in any others pending or imminent, order that publication of any report of the proceedings or part thereof be postponed for such time as the court thinks necessary for that purpose. Section 11 of the Act provides that a court may prohibit the publication of any name or other matter in connection with the proceedings before it which it has allowed to be withheld from the public.

(I.3.2) When considering whether to make such an order there is nothing which precludes the court from hearing a representative of the press. Indeed it is likely that the court will wish to do so.

(I.3.3) It is necessary to keep a permanent record of such orders for later reference. For this purpose all orders made under section 4(2) must be formulated in precise terms having regard to the decision in R v Horsham Justices ex parte Farquharson [1982] QB 762; 76 Cr App R 87, and orders under both sections must be committed to writing either by the judge personally or by the clerk of the court under the judge's directions. An order must state (a) its precise scope, (b) the time at which it shall cease to have effect, if appropriate, and (c) the specific purpose of making the order. Courts will normally give notice to the press in some form that an order has been made under either section of the Act and the court staff should be prepared to answer any enquiry about a specific case, but it is, and will remain, the responsibility of those reporting cases, and their editors, to ensure that no breach of any orders occurs and the onus rests on them to make enquiry in any case of doubt.

(I.4.1) Reference should be made to paragraph 9 of Practice Direction (Court of Appeal(Civil Division)) [1999]1 WLR 1027; [1999] 2 All ER 490.

(I.5.1) Where a child has been interviewed by the police in connection with contemplated criminal proceedings and the child subsequently becomes a ward of court, no leave of the wardship court is required for the child to be called as a witness in those proceedings. Where, however, the police desire to interview a child who is already a ward of court, application must, other than in the exceptional cases referred to in paragraph I.5.3, be made to the wardship court, on summons and on notice to all parties, for leave for the police to do so. Where, however, a party may become the subject of a criminal investigation and it is considered necessary for the ward to be interviewed without that party knowing that the police are making inquiries, the application for leave may be made ex parte to a judge without notice to that party. Notice, should, where practicable, be given to the reporting officer.

(I.5.2) Where leave is given the order should, unless some special reason requires the contrary, give leave for any number of interviews which may be required by the prosecution or the police. If it is desired to conduct any interview beyond what has been permitted by the order, a further application should be made.

(I.5.3) The exceptional cases are those where the police need to deal with complaints or alleged offences concerning wards and it is appropriate, if not essential, for action to be taken straight away without the prior leave of the wardship court. Typical examples may be: (a) serious offences against the ward, such as rape, where medical examination and the collection of scientific evidence ought to be carried out promptly; (b) where the ward is suspected by the police of having committed a criminal act and the police wish to interview him about it; (c) where the police wish to interview the ward as a potential witness. The list is not exhaustive; there will inevitably be other instances where immediate action is appropriate. In such cases the police should notify the parent or foster parent with whom the ward is living or other “appropriate adult” within the Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers, so that that adult has the opportunity of being present when the police interview the child. Additionally, if practicable, the reporting officer (if one has been appointed) should be notified and invited to attend the police interview or to nominate a third party to attend on his behalf. A record of the interview or a copy of any statement made by the ward should be supplied to the reporting officer. Where the ward has been interviewed without the reporting officer's knowledge, he should be informed at the earliest opportunity. So too, if it be the case that the police wish to conduct further interviews. The wardship court should be appraised of the situation at the earliest possible opportunity thereafter by the reporting officer, the parent, foster parent (through the local authority) or other responsible adult.

(I.5.4) No evidence or documents in the wardship proceedings or information about the proceedings should be disclosed in the criminal proceedings without leave of the wardship court.

(I.6.1) The effect of section 4(1) of the Rehabilitation of Offenders Act 1974 is that a person who has become a rehabilitated person for the purpose of the Act in respect of a conviction (known as a ‘spent’ conviction) shall be treated for all purposes in law as a person who has not committed or been charged with or prosecuted for or convicted of or sentenced for the offence or offences which were the subject of that conviction.

(I.6.2) Section 4(1) of the 1974 Act does not apply, however, to evidence given in criminal proceedings: section 7(2)(a). Convictions are often disclosed in such criminal proceedings. When the Bill was before the House of Commons on 28 June 1974 the hope was expressed that the Lord Chief Justice would issue a Practice Direction for the guidance of the Crown Court with a view to reducing disclosure of spent convictions to a minimum and securing uniformity of approach. The direction is set out in the following paragraphs. The same approach should be adopted in all courts of criminal jurisdiction.

(I.6.3) During the trial of a criminal charge, reference to previous convictions (and therefore to spent convictions) can arise in a number of ways. The most common is when the character of the accused or a witness is sought to be attacked by reference to his criminal record, but there are, of course, cases where previous convictions are relevant and admissible as, for instance, to prove system.

(I.6.4) It is not possible to give general directions which will govern all these different situations, but it is recommended that both court and advocates should give effect to the general intention of Parliament by never referring to a spent conviction when such reference can reasonably be avoided.

(I.6.5) After a verdict of guilty the court must be provided with a statement of the defendant's record for the purposes of sentence. The record supplied should contain all previous convictions, but those which are spent should, so far as practicable, be marked as such.

(I.6.6) No one should refer in open court to a spent conviction without the authority of the judge, which authority should not be given unless the interests of justice so require.

(I.6.7) When passing sentence the judge should make no reference to a spent conviction unless it is necessary to do so for the purpose of explaining the sentence to be passed.

(I.7.1) The practical effect of custodial sentences imposed by the courts is almost entirely governed by statutory provisions. Those statutory provisions, changed by Parliament from time to time, are not widely understood by the general public. It is desirable that when sentence is passed the practical effect of the sentence should be understood by the defendant, any victim and any member of the public who is present in court or reads a full report of the proceedings.

(I.7.2) Whenever a custodial sentence is imposed on an offender the court should explain the practical effect of the sentence in addition to complying with existing statutory requirements. This will be no more than an explanation; the sentence will be that pronounced by the court.

(I.7.3) Sentencers should give the explanation in terms of their own choosing, taking care to ensure that the explanation is clear and accurate. No form of words is prescribed. Annexed to this Practice Direction are short statements which may, adapted as necessary, be of value as models (see Annex C). These statements are based on the statutory provisions in force on 1 January 1998 and will, of course, require modification if those provisions are materially amended.

(I.7.4) Sentencers will continue to give such explanation as they judge necessary of ancillary orders relating to matters such as disqualification, compensation, confiscation, costs and so on.

(1.7.5) The power of the Secretary of State to release a prisoner early under supervision is not part of the sentence. The judge is therefore not required in his sentencing remarks to provide an explanation of this power. However, in explaining the effect of custodial sentences the judge should not say anything which conflicts with the existence of this power.

(I.8.1) Where a court passes on a defendant more than one term of imprisonment the court should state in the presence of the defendant whether the terms are to be concurrent or consecutive. Should this not be done the court clerk should ask the court, before the defendant leaves court, to do so.

(I.8.2) If a prisoner is, at the time of sentence, already serving two or more consecutive terms of imprisonment and the court intends to increase the total period of imprisonment, it should use the expression ‘consecutive to the total period of imprisonment to which you are already subject’ rather than ‘at the expiration of the term of imprisonment you are now serving’, lest the prisoner be not then serving the last of the terms to which he is already subject.

(I.9.1) Where an appellate court substitutes a suspended sentence of imprisonment for one having immediate effect, the court should have in mind any period the appellant has spent in custody. If the court is of the opinion that it would be fair to do so, an approximate adjustment to the term of the suspended sentence should be made. Whether or not the court makes such adjustment, it should state that it had that period in mind. The court should further indicate that the operational period of suspension runs from the date the court passes the suspended sentence.

(I.10.1) These are the subject of Practice Direction: References to the European Court of Justice by the Court of Appeal and the High Court under Article 177 of the EC Treaty [1999] 1 WLR 260; [1999] 1 Cr App R 452, to which reference should be made.

(I.11.1) These are the subject of Practice Direction: (Supreme Court)(Devolution Issues) [1999] 1WLR 1592; [1999] 3 All ER 466; [1999] 2 Cr App R 486, to which reference should be made.

(I.12.1) Since 11 January 2001 every judgment of the Court of Appeal, and of the Administrative Court, and since 14 January 2002 every judgment of the High Court, has been prepared and issued as approved with single spacing, paragraph numbering (in the margins) and no page numbers. In courts with more than one judge the paragraph numbering continues sequentially through each judgment and does not start again at the beginning of each judgment. Indented paragraphs are not numbered. A unique reference number is given to each judgment. For judgments of the Court of Appeal this number is given by the official shorthand writers. For judgments of the High Court it is provided by the Mechanical Recording Department at the Royal Courts of Justice. Such a number will also be furnished, on request to the Mechanical Recording Department, Royal Courts of Justice, Strand, London WC2A 2LL (Tel: 020 7947 7771), to High Court judgments delivered outside London.

(I.12.2) Each Court of Appeal judgment starts with the year, followed by EW (for England and Wales), then CA (for Court of Appeal), followed by Civ or Crim and finally the sequential number. For example Smith v Jones [2001] EWCA Civ 10.

(I.12.3) In the High Court, represented by HC, the number comes before the divisional abbreviation and, unlike Court of Appeal judgments, the latter is bracketed: (Ch), (Pat), (QB), (Admin), (Comm), (Admlty), (TCC) or (Fam) as appropriate. For example, [2002] EWHC 123 (Fam) or [2002] EWHC 124 (QB) or [2002] EWHC 125 (Ch).

(I.12.4) This ‘neutral citation’, as it is called, is the official number attributed to the judgment and must always be used at least once when the judgment is cited in a later judgment. Once the judgment is reported this neutral citation appears in front of the familiar citation from the law reports series. Thus: Smith v Jones [2001] EWCA (Civ) 10; [2001] QB 124; [2001] 2 All ER 364, etc.

(I.12.5) Paragraph numbers are referred to in square brackets. When citing a paragraph from a High Court judgment it is unnecessary to include the descriptive word in brackets: (Admin), (QB) or whatever. When citing a paragraph from a Court of Appeal judgment, however, Civ or Crim is included. If it is desired to cite more than one paragraph of a judgment each numbered paragraph should be enclosed with a square bracket. Thus paragraph 59 in Green v White [2002] EWHC 124 (QB) would be cited: Green v White [2002] EWHC 124 at [59]; paragraphs 30 – 35 in Smith v Jones would be Smith v Jones [2001] EWCA Civ 10 at [30] – [35]; similarly, where a number of paragraphs are cited: Smith v Jones [2001] EWCA Civ 10 at [30], [35] and [40 – 43].

(I.12.6) If a judgment is cited more than once in a later judgment it is helpful if only one abbreviation is used, e.g. Smith v Jones or Smith's case, but preferably not both (in the same judgment.)

(I.13.1) The following directions take effect immediately.

(I.13.2) The failure of the defendants to comply with the terms of their bail by not surrendering can undermine the administration of justice. It can disrupt proceedings. The resulting delays impact on victims, witnesses and other court users and also waste costs. A defendant's failure to surrender affects not only the case with which he is concerned, but also the courts' ability to administer justice more generally by damaging the confidence of victims, witnesses and the public in the effectiveness of the court system and the judiciary. It is, therefore most important that defendants who are granted bail appreciate the significance of the obligation to surrender to custody in accordance with the terms of their bail and that courts take appropriate action if they fail to do so.

(I.13.3) There are at least three courses of action for the courts to consider taking:-

(I.13.14) When a defendant has been convicted of a Bail Act offence, the court should review the remand status of the defendant, including the conditions of that bail, in respect of the main proceedings for which bail had been granted.

(I.13.15) Failure by the defendant to surrender or a conviction for failing to surrender to bail in connection with the main proceedings will be significant factors weighing against the re-granting of bail or, in the case of offences which do not normally give rise to a custodial sentence, in favour of trial in the absence of the offender.

(I.13.16) Whether or not an immediate custodial sentence has been imposed for the Bail Act offence, the court may, having reviewed the defendant's remand status, also remand the defendant in custody in the main proceedings.

(I.13.17) A defendant has a right, in general, to be present and to be represented at his trial. However, a defendant may choose not to exercise those rights by voluntarily absenting himself and failing to instruct his lawyers adequately so that they can represent him and, in the case of proceedings before the magistrates' court, there is an express statutory power to hear trials in the defendant's absence (s11 of the Magistrates' Courts Act 1980). In such circumstances, the court has discretion whether the trial should take place in his/her absence.

(I.13.18) The court must exercise its discretion to proceed in the absence of the defendant with the utmost care and caution. The overriding concern must be to ensure that such a trial is as fair as circumstances permit and leads to a just outcome.

(I.13.19) Due regard should be had to the judgment of Lord Bingham in R v Jones [2003] AC 1, [2002] 2 AER 113 in which Lord Bingham identified circumstances to be taken into account before proceeding, which include: the conduct of the defendant, the disadvantage to the defendant, public interest, the effect of any delay and whether the attendance of the defendant could be secured at a later hearing. Other relevant considerations are the seriousness of the offence and likely outcome if the defendant is found guilty. If the defendant is only likely to be fined for a summary offence this can be relevant since the costs that a defendant might otherwise be ordered to pay as a result of an adjournment could be disproportionate. In the case of summary proceedings the fact that there can be an appeal that is a complete rehearing is also relevant, as is the power to re-open the case under s142 of the Magistrates' Court Act 1980.

(I.14.1) This Practice Direction supplements Part 5 (forms) of the Criminal Procedure Rules.

(I.14.2) The forms set out in Annex D, or forms to that effect, are to be used in the criminal courts on or after 4th April, 2005, when the Criminal Procedure Rules come into force. Almost all are identical to those in use before that date, and accordingly a form in use before that date which corresponds with one set out in Annex D may still be used in connection with the rule to which it applies.

(I.14.3) The table at the beginning of Annex D lists the forms set out in that Annex and—

• shows the rule in connection with which each form applies
• describes each form
• in the case of a form in use before the Criminal Procedure Rules came into force, shows the legislation by which the form was prescribed and by what number (if any) it was known.

(I.15.1) Pending the making by the Criminal Procedure Rule Committee of specific rules for the purpose, this direction sets out the procedure to be followed on an application for a witness anonymity order. The court’s power to make such an order is conferred by the Criminal Evidence (Witness Anonymity) Act 2008 (in this direction, ‘the Act’). The court’s power to give case management directions is conferred by Part 3 of the Criminal Procedure Rules. Section 3 of the Act provides specific relevant powers and obligations.

(I.15.2) Where such an application is proposed, with the parties’ active assistance the court should set a realistic timetable, in accordance with the duties imposed by rules 3.2 and 3.3. Where possible, the trial judge should determine the application, and any hearing should be attended by the parties’ trial advocates.

(I.15.3) Where the prosecutor proposes an application for a witness anonymity order it is not necessary for that application to have been determined before the proposed evidence is served. In most cases an early indication of what that evidence will be if an order is made will be consistent with a party’s duties under rules 1.2 and 3.3. The prosecutor should serve with the other prosecution evidence a witness statement setting out the proposed evidence, redacted in such a way as to prevent disclosure of the witness’ identity, as permitted by section 3(4) of the Act. Likewise the prosecutor should serve with other prosecution material disclosed under the Criminal Procedure and Investigations Act 1996 any such material appertaining to the witness, similarly redacted.

(I.15.4) An application for a witness anonymity order should be made as early as possible and within any period directed by the court. It should be in writing and in two parts, one containing non-confidential information and the other confidential information. The applicant prosecutor or defendant should serve the non-confidential part on the other parties and on the court. The confidential part should be served only on the court and, where the applicant is a defendant, on the prosecutor. In accordance with rules 1.2 and 3.3, the applicant must provide the court with all available information relevant to the considerations to which the Act requires a court to have regard.

(I.15.5) The non-confidential part (to be served on all parties and on the court) should contain nothing that might reveal the witness’ identity. Consistently with that, it should:

(I.15.6) The confidential part (to be served only on the court and on any respondent prosecutor) should:

(I.15.7) The confidential part of the application usually should be served at the same time as the non-confidential part. Exceptionally, and subject to any contrary direction by the court, its service may be postponed until after a hearing of the non-confidential part.

(I.15.8) A party upon whom an application for a witness anonymity order is served should serve a response on the other parties and on the court within 14 days. That period may be extended or shortened in the court’s discretion.

(I.15.9) To avoid the risk of injustice a respondent must actively assist the court. If not already done, a respondent defendant should serve a defence statement under section 5 or 6 of the Criminal Procedure and Investigations Act 1996, so that the court is fully informed of what is in issue. The prosecutor’s continuing duty to disclose material under section 7A of the Criminal Procedure and Investigations Act 1996 may be engaged by a defendant’s application for a witness anonymity order. Therefore a prosecutor’s response should include confirmation that that duty has been considered. Nothing disclosed under the 1996 Act by a respondent prosecutor to a respondent defendant should contain anything that might reveal the witness’ identity. A respondent prosecutor should provide an applicant defendant and the court with all available information relevant to the considerations to which the Act requires a court to have regard, whether or not that information falls to be disclosed under the 1996 Act.

(I.15.10) All parties must have an opportunity to make oral representations to the court on an application for a witness anonymity order: section 3(6) of the Act. However, a hearing may not be needed if none is sought. Where, for example, the witness is an investigator who is recognisable by the defendant but known only by an assumed name, and there is no likelihood that the witness' credibility will be in issue, then the court may indicate a provisional decision and invite representations within a defined period, usually 14 days, including representations about whether there should be a hearing. In such a case, where the parties do not object the court may make an order without a hearing. Or where the court provisionally considers an application to be misconceived, an applicant may choose to withdraw it without requiring a hearing. Where the court directs a hearing of the application then it should allow adequate time for service of the representations in response.

(I.15.11) The hearing of an application for a witness anonymity order usually should be in private. The court has power to hear a party in the absence of a defendant and that defendant's representatives: section 3(7) of the Act. In the Crown Court, a recording of the proceedings will be made, in accordance with rule 65.8(2). The Crown Court officer must treat such a recording in the same way as the recording of an application for a public interest ruling. It must be kept in secure conditions, and the arrangements made by the Crown Court officer for any transcription must impose restrictions that correspond with those under rule 65.9(2)(a).

(I.15.12) At a hearing the court will receive, usually in this sequence, representations by:

(I.15.13) Where the confidential part of the application is served on the court before the last stage of the hearing, the court may prefer not to read the information in that part until that last stage.

(I.15.14) The court may adjourn the hearing at any stage, and should do so if its duty under rule 3.2 so requires.

(I.15.15 ) On a prosecutor’s application, the court is likely to be assisted by the attendance of a senior investigator or other person of comparable authority who is familiar with the case.

(I.15.16) During the last stage of the hearing it is essential that the court test thoroughly the information supplied in confidence in order to satisfy itself that the conditions prescribed by the Act are met. At that stage, if the court concludes that this is the only way in which it can satisfy itself as to a relevant condition or consideration, exceptionally it may invite the applicant to present the proposed witness to be questioned by the court. Any such questioning should be carried out at such a time, and the witness brought to the court in such a way, as to prevent disclosure of his or her identity.

(I.15.17) The court may ask the Attorney General to appoint special counsel to assist . However, it must be kept in mind that, ‘Such an appointment will always be exceptional, never automatic; a course of last and never first resort. It should not be ordered unless and until the trial judge is satisfied that no other course will adequately meet the overriding requirement of fairness to the defendant’: R v H [2004] 2 A.C. 134, at paragraph 22. Whether to accede to such a request is a matter for the Attorney General, and adequate time should be allowed for the consideration of such a request.

(I.15.18) Following a hearing the court should announce its decision on an application for a witness anonymity order in the parties’ presence and in public. The court should give such reasons as it is possible to give without revealing the witness’ identity. In the Crown Court, the court will be conscious that reasons given in public may be reported and reach the jury. Consequently, the court should ensure that nothing in its decision or its reasons could undermine any warning it may give jurors under section 7(2) of the Act. A record of the reasons must be kept. In the Crown Court, the announcement of those reasons will be recorded.

(I.15.19) Where the court makes a witness anonymity order it is essential that the measures to be taken are clearly specified in a written record of that order approved by the court and issued on its behalf. An order made in a magistrates’ court must be recorded in the court register, in accordance with rule 6.1.

(I.15.20) Self-evidently, the written record of the order must not disclose the identity of the witness to whom it applies. However, it is essential that there be maintained some means of establishing a clear correlation between witness and order, and especially where in the same proceedings witness anonymity orders are made in respect of more than one witness, specifying different measures in respect of each. Careful preservation of the application for the order, including the confidential part, ordinarily will suffice for this purpose.

(I.15.21) Section 6 of the Act allows the court to discharge or vary a witness anonymity order: on application, if there has been a material change of circumstances since the order was made or since any previous variation of it; or on its own initiative. Rule 3.6 allows the parties to apply for the variation of a pre-trial direction where circumstances have changed.

(I.15.22 ) The court should keep under review the question of whether the conditions for making an order are met. In addition, consistently with the parties’ duties under rules 1.2 and 3.3, it is incumbent on each, and in particular on the applicant for the order, to keep the need for it under review.

(I.15.23) Where the court considers the discharge or variation of an order, the procedure that it adopts should be appropriate to the circumstances. As a general rule, that procedure should approximate to the procedure for determining an application for an order. The court may need to hear further representations by the applicant for the order in the absence of a respondent defendant and that defendant’s representatives.

(I.15.24) If retained by the court, confidential material must be stored in secure conditions by the court officer. Alternatively, subject to such directions as the court may give, such material may be committed to the safe keeping of the applicant or any other appropriate person in exercise of the powers conferred by (as the case may be) rule 3.5(1), 63.4(b) or 65.8(2)(c). If the material is released to any such person, the court should ensure that it will be available to the court at trial.