Contents of this Part
| SECTION 3 – REFERRAL OF RELEASE DECISIONS | |
| SUB-SECTION 1 – GENERAL | |
| Scope | Rule 77.16 |
| Part 8 procedure | Rule 77.17 |
| Proceedings under this Section | Rule 77.18 |
| The application | Rule 77.19 |
| Service on the defendant | Rule 77.20 |
| SUB-SECTION 2 – NON-DISCLOSURE | |
| Applications for non-disclosure | Rule 77.21 |
| Applications under Part 2 of the 2013 Act | Rule 77.22 |
| Applications other than under Part 2 of the 2013 Act | Rule 77.23 |
| Relevant material and statement of reasons to be filed | Rule 77.24 |
| Consideration of the application | Rule 77.25 |
| Hearings | Rule 77.26 |
| Special advocates | Rule 77.27 |
| Special advocates – communicating about proceedings | Rule 77.28 |
| Consideration of the claimant’s objection under rule 77.27(7)(b) | Rule 77.29 |
| Failure to comply with directions | Rule 77.30 |
| Orders under the 1997 Act and 2003 Act | Rule 77.31 |
| Supply of court documents | Rule 77.32 |
| Appeals | Rule 77.33 |
Scope of this Part
77.1
This Part contains rules about –
(a) in Section 1, applications for a serious crime prevention order under section 8 of the Serious Crime Act 20071 and related applications under sections 9, 17 and 18 of that Act; and
(b) in Section 2, applications under section 54(3) of the Criminal Procedure and Investigations Act 19962 for an order quashing an acquittal.
I SERIOUS CRIME PREVENTION ORDERS
Interpretation
77.1A
(a) ‘the 2007 Act’ means the Serious Crime Act 2007; and
(b) ‘SCPO’ means a serious crime prevention order under section 1 or section 9 of the 2007 Act.
Application for a SCPO
77.2
An application under section 8 of the 2007 Act for a SCPO must be started in accordance with Part 8 as modified by Practice Direction 77.
Applications by third parties to make representations and applications to vary or discharge a SCPO made by the High Court
77.3
(a) section 9 of the 2007 Act; or
(b) section 17 or 18 of the 2007 Act to vary or discharge a SCPO made by the High Court,
must be made in accordance with Part 23 as modified by Practice Direction 77.
Application to vary or discharge a SCPO made by the Crown Court
77.4
An application under section 17 or 18 of the 2007 Act to vary or discharge a SCPO made by the Crown Court must be started in accordance with Part 8.
Where to make an application
77.5
Applications under this Part must be made to the Administrative Court in accordance with Practice Direction 77.
II APPLICATION TO QUASH AN ACQUITTAL
Scope and interpretation
77.6
(1) This Section contains rules about applications to quash an acquittal under section 54(3) of the Criminal Procedure and Investigations Act 19963 and applies in relation to acquittals in respect of offences alleged to have been committed on or after 15th April 1997.
(2) An application made under this Section may be made only by the individual or body which acted as prosecutor in the proceedings which led to the acquittal.
(a) ‘the 1996 Act’ means the Criminal Procedure and Investigations Act 1996;
(b) ‘acquitted person’ means a person whose acquittal of an offence is the subject of a certification under section 54(2) of the 1996 Act, and ‘acquittal’ means the acquittal of that person of that offence;
(c) ‘magistrates’ court’ has the same meaning as in section 148 of the Magistrates’ Courts Act 19804; and
(d) ‘record of court proceedings’ means –
(i) where the proceedings took place in the Crown Court, a transcript of the evidence; or
(ii) where the proceedings took place in a magistrates’ court, a transcript of the evidence if there is one and if not a note of the evidence made by the justices’ clerk,
in the proceedings which led to the conviction for the administration of justice offence referred to in section 54(1)(b) of the 1996 Act or, as the case may be, the proceedings which led to the acquittal.
Time limit for making the application
77.7
An application for an order quashing an acquittal under section 54(3) of the 1996 Act must be made no later than 28 days after the issue of the certificate to which section 54(2) of that Act refers.
Where to make the application
77.8
(1) The jurisdiction of the High Court under section 54(3) of the 1996 Act may be exercised by a Divisional Court or a single judge of the High Court.
(2) The application must be made to the Administrative Court which will direct whether the application should be dealt with by a Divisional Court or a single judge of the High Court.
How to make the application
77.9
(1) The application must be made by filing a claim form pursuant to Part 8.
(2) The claimant must file with the claim form –
(a) a witness statement which deals with the conditions in section 55(1), (2) and (4) of the 1996 Act and which exhibits any relevant documents (which may include a copy of any record of court proceedings); and
(b) a copy of the certification under section 54(2) of the 1996 Act.
Notice to defendant (acquitted person)
77.10
(1) Within 7 days of the claim form being issued by the court, the claimant must serve on the defendant (the acquitted person) a copy of the claim form and the documents which accompanied it.
(2) The documents referred to in paragraph (1) must be accompanied by a notice informing the defendant that –
(a) the result of the application may be the making of an order by the High Court quashing the acquittal; and
(b) the defendant must, if wishing to respond to the application, file –
(i) within 14 days of service of the claim form an acknowledgment of service; and
(ii) within 28 days of service of the claim form any witness statement on which the defendant wishes to rely.
(3) The claimant must file as soon as practicable after service of the notice on the defendant a certificate of service together with a copy of the notice.
Response to the application
77.11
(1) The defendant must, if wishing to respond to the application, file –
(a) an acknowledgment of service within 14 days of service of the claim form under rule 77.10; and
(b) a witness statement which –
(i) deals with the conditions in section 55(1), (2) and (4) of the 1996 Act; and
(ii) exhibits any relevant documents (which may include a copy of any record of court proceedings),
within 28 days of service of the claim form under rule 77.10.
(2) The defendant must serve the documents in paragraph (1) on the claimant within 7 days of filing them with the court.
(3) Rule 8.5(3) does not apply.
Further evidence
77.12
(1) The claimant may, not later than 10 days after the expiry of the period allowed in rule 77.11(1), apply without notice for permission to file further evidence.
(2) Any order granting permission to file further evidence will specify the period within which that further evidence is to be filed.
(3) The claimant must serve a copy of the further evidence on the defendant within 4 days of filing that further evidence.
(4) Rule 8.5(5) and 8.5(6) do not apply.
Determination of the application to quash an acquittal (general provisions)
77.13
(1) The application to quash an acquittal will be determined without a hearing unless the court, of its own initiative or on the application by a party, orders otherwise.
(2) The determination of the application to quash an acquittal will not be made, and any hearing of the application (if ordered) will not take place, before the expiry of –
(a) 10 days after the expiry of the period allowed under rule 77.11(1); or
(b) 10 days after the expiry of the period allowed by any order made under rule 77.12(2).
(3) The court will serve notice of any order made on the application to quash an acquittal on the parties and where the court before which the acquittal or conviction occurred was –
(a) a magistrates’ court, on the designated officer; or
(b) the Crown Court, on the appropriate officer of the Crown Court sitting at the place where the acquittal or conviction occurred.
Application for a hearing to determine the application to quash an acquittal
77.14
(1) An application for a hearing under rule 77.13(1) must –
(a) be made no later than 7 days after the expiry of the period allowed –
(ii) by any order made under rule 77.12(2); and
(b) state whether a hearing is requested in order for a witness for the other party to attend to be cross-examined(GL) and, if so, the reasons for wishing the witness to attend.
(2) The party applying for a hearing must –
(a) serve a copy of the application notice on the other party within 4 days of filing it with the court; and
(b) file a certificate of service.
(3) The party served with an application for a hearing must file any representations within 5 days of service of the application notice.
(4) Subject to paragraph (5), the court will not determine an application for a hearing unless a certificate of service has been filed pursuant to sub-paragraph (2)(b) and –
(a) representations have been filed under paragraph (3); or
(b) the period for filing representations under paragraph (3) has expired.
(a) no certificate of service has been filed; and
(b) no representations under paragraph (3) have been received after the expiry of 7 days from the date of filing the application,
the court may dismiss the application for a hearing.
Hearing to determine the application to quash an acquittal
77.15
Where a hearing is ordered, the court –
(a) may order a witness to attend to be cross-examined(GL) –
(ii) on a without notice application by a party; and
(b) will serve a notice on all parties setting out –
(i) the date, time and place of the hearing; and
(ii) the details of any witness ordered to attend for cross-examination(GL).
SECTION 3 Referral of Release Decisions
SUB-SECTION 1 General
Scope
77.16. This Section applies where the Secretary of State directs the Parole Board to refer a release decision to the High Court under section 32ZAA of the Crime (Sentences) Act 1997 (“the 1997 Act”) or section 256AZBA of the Criminal Justice Act 2003 (“the 2003 Act”).
Part 8 procedure
77.17. The Part 8 procedure applies to proceedings under this Section with the following modifications.
Proceedings under this Section
77.18. In proceedings under this Section—
(a)the referral of a release decision shall be treated as an application by the Secretary of State;
(b)the Secretary of State is the claimant;
(c)the prisoner is the defendant;
(d)the Parole Board and any victim (as defined in section 1 of the Victims and Prisoners Act 2024) of an offence to which the referral relates are not parties;
(e)rules 8.7 and 8.8 shall not apply.
The application
77.19.—(1) The claim form must—
(a)state that the Parole Board has been directed by the claimant to refer the release decision to the court because the claimant considers that—
(i)the release of the defendant would be likely to undermine public confidence in the parole system; and
(ii)if the case were referred, the High Court might not be satisfied that it is no longer necessary for the protection of the public that the defendant should be confined;
(b)identify the provisions in the 1997 Act or the 2003 Act under which the direction was made; and
(c)state that the claimant will file and serve all further material in accordance with paragraph (2).
(2) Rule 8.5(1) is modified such that, not later than two days after the date on which the claim form is filed, the claimant must file with the court and, together with the claim form, serve on the defendant—
(a)the claimant’s reasons for considering why the court might not be satisfied that it is no longer necessary for the protection of the public that the defendant should be confined;
(b)any representations regarding the directions the court may include as to the conditions to be included in the defendant’s licence on release;
(c)the Parole Board’s decision letter;
(d)all information and reports served on and considered by the Parole Board; and
(e)any further information the claimant considers relevant to the application.
(3) Paragraph (2) is subject to rule 77.21.
(4) In any proceedings under this Section, the claimant may not rely on any written evidence or information unless—
(a)it has been served in accordance with—
(i)a rule or practice direction under this Section; or
(ii)a direction of the court; or
(b)the court gives permission.
(5) Without prejudice to Sub-section 2, until the proceedings to which this Section applies are concluded, the claimant must file and serve on the defendant any material which—
(a)adversely affects the claimant’s case; or
(b)supports the defendant’s case.
Service on the defendant
77.20.—(1) Except where rule 6.7 applies—
(a)the claim form must be served personally in accordance with rule 6.5; and
(b)the time within which a certificate of service must be filed under rule 6.17(2)(a) shall be within 7 days of service of the claim form.
(2) Except where the defendant has given an address for service under rule 6.23(2)(a), a document other than the claim form must be served on the defendant personally in accordance with rule 6.22.
SUB-SECTION 2 Non-disclosure
Applications for non-disclosure
77.21. Any application under section 6(2) of the Justice and Security Act 2013 (“the 2013 Act”) or rule 77.23 must be made—
(a)when the claimant files material under rule 77.19(2); or
(b)if they have filed their material under rule 77.19(2), when the claimant files any additional material in respect of which they wish to make an application.
Applications under Part 2 of the 2013 Act
77.22. Where Part 2 of the 2013 Act applies to proceedings under this Section, Part 82 shall apply.
Applications other than under Part 2 of the 2013 Act
77.23.—(1) This rule applies where, on application by the claimant, the court considers that—
(a)the disclosure of any information or any report (“the relevant material”) would adversely affect—
(i)the prevention of disorder or crime; or
(ii)the health or welfare of the defendant or any other person; and
(b)withholding the relevant material is a necessary and proportionate measure.
(2) Where this rule applies, the court must direct that the relevant material—
(a)be withheld from the defendant and their legal representative;
(b)be withheld from the defendant, but disclosed to their legal representative, in full or in a summary or redacted version, subject to the legal representative undertaking to the court not to disclose the relevant material or the summary or redacted version (as the case may be) to the defendant, or to any other person except as directed by the court and provided in the undertaking;
(c)be disclosed to the defendant and their legal representative in a summary or redacted version; or
(d)be withheld from the defendant and their legal representative, but disclosed to a special advocate.
(3) The court may vary or set aside a direction under paragraph (2) on application or of its own motion.
Relevant material and statement of reasons to be filed
77.24.—(1) An application under rule 77.23(1) must—
(a)include the relevant material;
(b)identify the persons from whom the relevant material should be withheld;
(c)set out the reasons for withholding the relevant material and explain why it is a necessary and proportionate measure;
(d)if the claimant proposes disclosure in a summary or redacted version, include a draft of that document; and
(e)state whether the claimant will withdraw and no longer rely on the relevant material in the event of the application being refused.
(2) When an application is made under rule 77.23(1), the application need not be served on the defendant, but the claimant must, at the same time as filing the application—
(a)notify the defendant that an application has been made, whether or not a special advocate has already been appointed;
(b)if the application proposes disclosure to the defendant in a summary or redacted version, include with the notification a draft of that document; and
(c)if one has been appointed in respect of an earlier application under rule 77.23(1), serve on the special advocate the application and accompanying material under paragraph (1).
(3) Where paragraph (2)(c) applies, the special advocate may file and serve on the claimant written submissions regarding the application within 14 days of service of the application.
Consideration of the application
77.25.—(1) Where the court considers an application under rule 77.23(1) it may—
(a)determine the application without a hearing; or
(b)direct a hearing of the application.
(2) Rule 23.8(3) is modified to provide that, under this rule and rule 77.29, a party includes a special advocate if one has been appointed.
(3) Where the court makes a direction under rule 77.23(2)(b), within 7 days after the date on which the defendant is notified of the court’s decision or such other period as the court may direct, the legal representative must—
(a)file and serve on the claimant the required undertaking; or
(b)inform both the court and the claimant of their decision not to do so.
(4) Where the legal representative—
(a)gives the required undertaking under paragraph (3), the claimant must, within two days of the date on which it is served on them—
(i)serve on the legal representative the relevant material in full or as directed; or
(ii)inform both the court and the defendant of their decision not to rely on it; or
(b)does not give the required undertaking within the time specified in paragraph (3) or informs the court of their decision not to give undertakings, the claimant must seek further directions from the court.
(5) Where the court does not give permission to withhold relevant material from the defendant, or has made a direction under rule 77.23(2)(c), within seven days after the date on which they are notified of the court’s decision or such other period as the court may direct, the claimant must—
(a)serve on the defendant the relevant material in full, or as directed; or
(b)inform both the court and the defendant of their decision not to rely on it.
(6) Where the claimant has informed the court of their decision not to rely on the relevant material in full or as directed—
(a)the claimant shall not be required to serve the relevant material on the defendant or comply with the direction; but
(b)the court may, at a hearing on notice, if it considers that the relevant material or anything that is required to be summarised or redacted might adversely affect the claimant’s case or support the case of the defendant, direct that the claimant is not to rely on such points, or that the claimant makes such concessions or takes such other steps, as the court may direct.
Hearings
77.26.—(1) Where the court considers it necessary to exclude the defendant from any hearing or part of that hearing to ensure that relevant material subject to a direction under rule 77.23(2) is not disclosed to them, the court must direct that the hearing, or that part of it from which the defendant is excluded, be conducted in private.
(2) Unless the court directs otherwise, the court shall serve notice of the date, time and place fixed for a hearing on every party and, if one has been appointed for the purposes of the proceedings, the special advocate or those instructing the special advocate.
Special advocates
77.27.—(1) In any proceedings to which this Sub-section applies, the court may at any stage direct the claimant to request the Attorney General to appoint a special advocate to represent the interests of the defendant.
(2) The function of a special advocate is to represent the interests of the defendant by, for example—
(a)making submissions to the court at any hearing from which the party and that party’s legal representative are excluded;
(b)adducing evidence and cross-examining witnesses at such a hearing;
(c)making applications to the court or seeking directions from the court where necessary; and
(d)making written submissions to the court, including whether relevant material withheld under rule 77.23(2) should be disclosed in full or in a summary or redacted version.
(3) Where the court makes a direction under paragraph (1), the claimant—
(a)must within seven days of receipt of notification of their appointment, serve on the special advocate, copies of—
(i)the claim form and further material specified in rule 77.19(2), and any further evidence served on the defendant;
(ii)the acknowledgement of service and any further evidence served by the defendant;
(iii)the application under rule 77.23(1) and the relevant material and documents specified in rule 77.24(1); and
(iv)if applicable, the court’s direction under rule 77.23(2); and
(b)may not rely on the relevant material which is the subject of the application under rule 77.23(1) unless a special advocate has been appointed, and the relevant material has been served on them.
Special advocates – communicating about proceedings
77.28.—(1) A special advocate may communicate with the defendant, or their legal representative, at any time before the claimant serves the relevant material on the special advocate.
(2) After the relevant material has been served on the special advocate, they must not communicate with any person about any matter connected with the proceedings, except in accordance with paragraphs (3), (4) or (8)(b) or with a direction of the court pursuant to a request under paragraph (5).
(3) The special advocate may, without directions from the court, communicate about the proceedings with—
(a)the court;
(b)the claimant;
(c)the Attorney General and any persons acting for the Attorney General;
(d)any other person, except for the defendant or their legal representative, with whom it is necessary for administrative purposes for the special advocate to communicate about matters not connected with the substance of the proceedings.
(4) The special advocate may communicate with the defendant or their legal representative with the express agreement of the claimant.
(5) The special advocate may request directions from the court authorising them to communicate with—
(a)subject to paragraph (6), the defendant or their legal representative; or
(b)with any other person.
(6) Where the special advocate wishes to communicate with the defendant or their legal representative, the special advocate may not, without good reason, request directions under paragraph (5)(a) unless the claimant has refused their request under paragraph (4).
(7) Where the special advocate requests directions under paragraph (5)—
(a)the special advocate must notify the claimant of the request; and
(b)the claimant must, within two days or such other period as may be directed by the court, file and serve on the special advocate notice of any objection to the proposed communication, or to the form in which it is proposed to be made.
(8) Paragraph (2) does not prohibit the defendant or their legal representative communicating with the special advocate after the claimant has served relevant material on the special advocate, but—
(a)they may only do so in writing; and
(b)the special advocate must not reply to the communication other than in accordance with directions given by the court, except that the special advocate may, under paragraph (4) or without such directions, send a written acknowledgment of receipt.
Consideration of the claimant’s objection under rule 77.28(7)(b)
77.29.—(1) If the claimant objects to a proposed communication under rule 77.28(7)(b)—
(a)the special advocate may file and serve on the claimant a reply to the objection;
(b)the claimant and the special advocate must file with the court a schedule identifying the issues which cannot be agreed between them and which must—
(i)give brief reasons for their contentions on each issue in dispute; and
(ii)set out any proposals for the court to resolve the issues in dispute.
(2) On receipt of the claimant’s objection, the special advocate may give notice that they do not challenge it.
(3) The court may—
(a)consider the claimant’s objection without a hearing; or
(b)if the court considers that it is necessary before it can determine the matter, direct a hearing.
Failure to comply with directions
77.30.—(1) Where the claimant or special advocate fails to comply with a direction of the court, the court may serve on the claimant or the special advocate a notice which states—
(a)the respect in which they have failed to comply with the direction;
(b)a time limit for complying with the direction; and
(c)that the court may proceed to determine the proceedings before it, on the material available to it, if they fail to comply with the relevant direction within the time specified.
(2) Where the claimant or special advocate fails to comply with such a notice, the court may proceed in accordance with paragraph (1)(c).
Orders under the 1997 Act and 2003 Act
77.31.—(1) Where the court makes an order in any proceedings to which this Sub-section applies, it may withhold any, or any part, of its reasons if and to the extent that it is not possible to give those reasons without disclosing material, the disclosure of which would adversely affect—
(a)the prevention of disorder or crime; or
(b)the health or welfare of the defendant or any other person.
(2) Where the court’s judgment does not include the full reasons for its decision, the court must serve on the claimant, the defendant’s legal representative if appropriate, and, if appointed, the special advocate, a separate written judgment giving those reasons.
Supply of court documents
77.32. Unless the court otherwise directs, rule 5.4B (supply of documents from court records – a party) and rule 5.4C (supply of court documents – a non-party) do not apply to any proceedings to which this Sub-section applies.
Appeals
77.33.—(1) Part 52 (appeals) applies to an appeal to the Court of Appeal—
(a)against an order of the High Court on or in relation to an application under rule 77.23(1); and
(b)where the order under appeal was not made on or in relation to a matter within sub-paragraph (a) but the appeal proceedings involve such a matter.
(2) Paragraph (1) is subject to—
(a)this Sub-section; and
(b)paragraph (3) of this rule.
(3) The appellant must serve a copy of the appellant’s notice on any special advocate.
(4) Unless the court directs otherwise, an appeal to the Court of Appeal in proceedings under paragraph (1), must be determined at a hearing.
Footnotes
1. 2007 c.27
2. 1996 c. 25.
3. 1996 c. 25.
4. 1980 c. 43.
5. S.I. 2010/60.
Updated: Thursday, 6 April 2023